OHBPC 1987-12-18

Did an 'acting judge' under Ohio Rev. Code 1901.10(A) have to comply with the Code of Judicial Conduct, and could that person later act as a lawyer in a case heard while serving as acting judge?

Short answer: The Board concluded that an acting judge had to comply with the Code of Judicial Conduct while serving as judge, except for certain enumerated Canons (5C(2), (3), D, E, F, G, and 6C), and that one who had been an acting judge should not act as a lawyer in a proceeding in which the person served as judge or in any related proceeding. The opinion interprets the former Ohio Code of Judicial Conduct, since superseded.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Ohio BPC Opinion 87-049: Acting Judge's Compliance With the Code of Judicial Conduct

Short answer: The Board concluded that an "acting judge" under Ohio Rev. Code 1901.10(A) had to comply with the Code of Judicial Conduct while serving as judge, except for the Canons specifically excluded in the Code's compliance section (Canon 5C(2), (3), D, E, F, G, and Canon 6C), and that a person who had served as an acting judge should not act as a lawyer in a proceeding in which the person served as judge or in any related proceeding.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Currency note

The Board's status list flags this opinion as not current: it is a former Code of Judicial Conduct opinion subject to subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct effective May 1, 1997, and the former Code was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

An acting judge serving under Ohio Rev. Code 1901.10(A) asked whether the acting judge had to comply with the Code of Judicial Conduct. The Board answered that the acting judge was required to comply with the Code while serving, except for the provisions specifically excluded in the Code's compliance section (Canon 5C(2), (3), D, E, F, G, and Canon 6C). The Board explained that the term "judge pro tempore" in the compliance section was synonymous with "acting judge" under the statute.

The Board added that a person who had been an acting judge was prohibited from serving as a lawyer in a proceeding in which the person served as a judge, or in any other related proceeding, citing the compliance section's subsection B(2).

Common questions

Q: Did an acting judge have to follow the whole Code of Judicial Conduct?

A: Not entirely. The Board concluded that an acting judge complied with the Code while actually serving as judge, except for the Canons specifically excluded in the compliance section (Canon 5C(2), (3), D, E, F, G, and Canon 6C).

Q: Could a former acting judge later represent a party in the same matter?

A: No. The Board concluded that one who had served as an acting judge should not act as a lawyer in a proceeding in which the person served as judge, or in any related proceeding.

Background and rules framework

The opinion interprets the compliance section of the former Ohio Code of Judicial Conduct as applied to "acting judges" defined by Ohio Rev. Code 1901.10(A). The compliance section identified which Code provisions bind a judge pro tempore and barred such a person from later serving as a lawyer in a matter heard while sitting as judge.

Citations and references

Rules of Professional Conduct:

Former CJC Compliance Section B(1) and B(2), Ohio Code of Judicial Conduct
Former CJC Canon 5C(2), (3), D, E, F, G, and Canon 6C, Ohio Code of Judicial Conduct

Statutes:

Ohio Rev. Code 1901.10(A) (acting judge)

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-87-049.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 87-049
December 18, 1987

[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio code of Judicial Conduct, eff. May 1, 1997]

SYLLABUS: An "acting judge," as referred to in the Ohio Revised Code Sec. 1901.10(A), must comply with the Code of Judicial Conduct while acting as judge, except for Canon 5C(2), (3), D, E, F, and G, and Canon 6C. One who has been an acting judge should not act as a lawyer in a proceeding in which he or she served as a judge or in any other related proceeding.

OPINION: We have before us your request for our opinion on whether you, as an "acting judge" under Ohio Rev. Code Sec. 1901.10(A), are required to comply with the Code of Judicial Conduct. While serving as an acting judge, you are required to comply with the Code, except for Canon 5C (2) (3), D, E, F, G, and Canon 6C. Code of Judicial Conduct Compliance Sec. B(l). Thus, your compliance with those Code provisions not specifically excluded in the compliance section is required during the period while you are actually serving as judge.

By definition, the term, "judge pro tempore," as used in the compliance section of the Code of Judicial Conduct is synonymous with the term "acting judge" as referred to in the Ohio Revised Code Sec. 1901.10(A).

One who has been an acting judge is prohibited from serving as a lawyer in a proceeding in which he served as a judge or in any other related proceeding. Code of Judicial Conduct Compliance Sec. B(2).

In conclusion, it is our opinion, and you are so advised, that an acting judge must comply with the Code of Judicial Conduct only while acting as a judge, except for Canons 5C (2) (3), D, E, F, G and 6C.

This is an informal, non-binding advisory opinion, based upon the facts as presented and limited to questions arising under the Code of Judicial Conduct.

James W. Mason, Esq.
Secretary, Board of Commissioners on Grievances and Discipline