Could an acting judge appointed by a municipal court judge hear cases in which the appointing judge's son appeared as a lawyer for one of the parties?
Ohio BPC Opinion 88-005: Acting Judge Disqualification When the Appointing Judge's Relative Appears
Short answer: The Board concluded that an acting judge appointed by a municipal court judge should disqualify from any proceeding in which the acting judge's impartiality might reasonably be questioned, including cases in which the appointing judge's son appeared as a lawyer for a party, because hearing such cases would create an appearance of impropriety.
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.
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amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct effective May 1, 1997, and the former Code was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. Treat this page as historical context, not current guidance.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
A municipal court judge, the only judge in the court, who drew on four or five substitute judges when a conflict arose or he was absent, asked whether an acting judge he appointed could hear cases in which his son was a lawyer for one of the parties. The Board first noted that an acting judge is subject to the Code of Judicial Conduct while on the bench, except for the provisions excluded by the Code's compliance section.
The Board reasoned that, although nothing in the Code specifically required an acting judge's disqualification when the appointing judge's son represented a party, former Canon 2 (avoid the appearance of impropriety) and former Canon 3C(1) (disqualify where impartiality might reasonably be questioned) applied. The Board concluded that an acting judge hearing such cases would create an appearance of impropriety and that the arrangement would not promote public confidence in the impartiality of the judiciary under Canon 2(A). The Board observed that a visiting judge assigned by the Chief Justice of the Ohio Supreme Court would not be similarly "tainted" and would also be covered by the Court's judicial liability policy, unlike an acting judge appointed by the municipal judge. The Board concluded that the acting judge should disqualify from proceedings in which his impartiality might be questioned, including cases involving the appointing judge's son.
Common questions
Q: Could the appointed acting judge hear the appointing judge's son's cases?
A: No. The Board concluded the acting judge should disqualify, because hearing cases in which the appointing judge's son was counsel would create an appearance of impropriety under former Canons 2 and 3C(1).
Q: Would a visiting judge assigned by the Chief Justice be treated the same way?
A: The Board observed that a visiting judge assigned by the Chief Justice would not be tainted in the way an acting judge appointed by the municipal judge would be, and would be covered by the Supreme Court's judicial liability policy.
Background and rules framework
The opinion applies the former Ohio Code of Judicial Conduct compliance section (which provisions bind an acting judge), former Canon 2 and 2(A) (appearance of impropriety and public confidence), and former Canon 3C(1) (disqualification where impartiality might reasonably be questioned), to an acting judge appointed under Ohio Rev. Code 1901.10.
Citations and references
Rules of Professional Conduct:
- Former CJC Canon 2 and 2(A), Ohio Code of Judicial Conduct
- Former CJC Canon 3C(1), Ohio Code of Judicial Conduct
- Former CJC Compliance Section B, Ohio Code of Judicial Conduct
Statutes:
- Ohio Rev. Code 1901.10 (acting judge)
See also
- Ohio BPC Opinion 1987-049: Acting Judge's Duties Under the Code of Judicial Conduct
- Ohio BPC Opinion 1987-023: Recusal When an Election Opponent Represents a Party
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-005.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 88-5
Issued: April 25, 1988
[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 1-6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: An acting judge appointed by the judge of a municipal court pursuant to Ohio Rev. Code §1901.10 may not hear cases where one of the lawyers involved is related, within the third degree as defined in Canon 3 of the Code of Judicial Conduct, to the appointing judge.
OPINION: We have before us your request for an informal advisory opinion on whether an acting judge appointed by you as Municipal Court Judge may hear cases in which your son is a lawyer for one of the parties. In your request letter you indicate that you are the only judge in your Municipal Court and that you have four or five substitute judges that you draw from when there appears to be a conflict of interest, or if you are absent or on vacation.
An acting judge is subject to the Code of Judicial Conduct while sitting on the bench with the exception of Canon 5C(2), (3), D, E, F, and G, and Canon 6C. Code of Judicial Conduct Compliance §B.
Although there is nothing in the Code specifically requiring an acting judge's disqualification in a case in which the appointing judge's son is representing one of the parties, all judges should avoid the appearance of impropriety. Code of Judicial Conduct Canon 2. In addition, "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." Code of Judicial Conduct Canon 3C(l). It is our opinion that an acting judge hearing cases where one of the attorneys is the son of the judge who appointed the acting judge would be creating the appearance of impropriety and therefore should be avoided.
Furthermore, under Canon 2(A), a judge should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. The facts as presented in this request, if acted upon, would not promote the public confidence in the impartiality of the judiciary.
However, if a visiting judge were appointed by the Chief Justice of the Ohio Supreme Court through his assignment powers, the visiting judge would not be "tainted" as he would if the municipal court judge had appointed him as acting judge. In other words, a visiting judge appointed by the Chief Justice would be able to hear cases which he would be unable to hear because of the appearance of impropriety created by an appointment from the actual judge. Furthermore, an appointment by the Chief Justice would also insure that the appointed judge is covered under the judicial liability policy the Ohio Supreme Court holds for judges throughout the State. Acting judges not appointed by the Chief Justice of the Ohio Supreme Court are not covered under this judicial liability policy.
In conclusion, it is our opinion and you are so advised that, an acting judge appointed by the municipal court judge should disqualify himself from a proceeding in which his impartiality may be questioned including cases in which the municipal court judge's son is acting as a lawyer in the proceeding.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.