Under the former Ohio Code of Judicial Conduct, could a sitting judge be a partner or shareholder in a business that consulted, for pay, candidates running for elective office?

Currency note

The Board's status list flags this opinion as a Former CJC Opinion that provides advice under the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009. The status list also notes subsequent rule amendments to Canons 1 through 6 effective May 1, 1997, and subsequent amendments to Canon 7. Treat this page as historical context, not current guidance. Do not rely on the former Canon 2, 5C(2), or 7A(4) references as current Ohio rules. Verify against current rules before acting.

Plain-English summary

A sitting judge asked whether he could ethically serve as a paid consultant to persons seeking elective office. The judge proposed to be a partner or co-shareholder in a corporation formed to advise candidates running for office, and the business would be formed with an attorney who appeared in the judge's court but who would stop appearing there once he became the judge's business partner.

The Board read Canon 5C(2) of the former Code of Judicial Conduct as controlling: a judge should not serve as an officer, director, manager, advisor, or employee of any business. The Board added that, even assuming the judge would not intentionally exploit his judicial position, the arrangement could create an appearance of impropriety under Canon 2, quoting the Reporter's Notes that a judge "should not exploit his judicial position to gain a business advantage, nor should he engage in business dealings that would involve him in frequent transactions with lawyers or persons likely to appear in his court." The candidates being advised could themselves be lawyers or persons likely to appear before the judge.

The Board also relied on Canon 7A(4), which provided that a judge should not engage in political activity. It reasoned that the business of consulting candidates for political office could be considered engaging in political activity. The Board concluded that the judge should not engage in the business of consulting candidates for political office.

Common questions

Q: Why did Canon 5C(2) bar the judge from the consulting business?

A: Canon 5C(2) of the former Code of Judicial Conduct provided that a judge should not serve as an officer, director, manager, advisor, or employee of any business. The Board read the proposed role (partner or co-shareholder advising candidates) as exactly the kind of business position the Canon prohibited.

Q: Did it matter that the judge said he would not publicly endorse any candidate?

A: No. The Board assumed the judge would not intentionally exploit his position, but it concluded the activity could still create an appearance of impropriety under Canon 2, because the business would involve dealings with lawyers and candidates likely to appear before the court.

Q: Did the Board treat political consulting as political activity?

A: Yes. The Board cited Canon 7A(4), which stated that a judge should not engage in political activity, and reasoned that the business of consulting candidates for political office could be considered engaging in political activity.

Background and rules framework

The opinion interpreted the former Ohio Code of Judicial Conduct (1973), modeled on the 1972 ABA Model Code of Judicial Conduct. Canon 5C(2) addressed a judge's financial and business activities; Canon 2 addressed avoiding impropriety and the appearance of impropriety; and Canon 7A(4) addressed a judge's political activity. The current Ohio Code of Judicial Conduct, effective March 1, 2009, reorganized these provisions, so the canon numbers cited here no longer map to current Ohio rules.

Citations and references

Rules of Judicial Conduct:

• Former Canon 2, Ohio Code of Judicial Conduct (1973)
• Former Canon 5C(2), Ohio Code of Judicial Conduct (1973)
• Former Canon 7A(4), Ohio Code of Judicial Conduct (1973)

Other authorities:

• E.W. Thode, Reporter's Notes to Code of Judicial Conduct, 81 (1973)

See also

• Ohio BPC Opinion 1987-013: Judge on Governmental Task Force
• Ohio BPC Opinion 1987-003: Judge on Foundation Board
• Ohio BPC Opinion 1987-044: Judges Commenting on Ballot Issues

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://ohioadvop.org/wp-content/uploads/2021/11/88-7.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 88-7
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 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997; subsequent amendments to Canon 7]

SYLLABUS: A judge should regulate his extra-judicial activities to minimize the risk of conflict with his judicial duties. A judge should not serve as an officer, director, manager, advisor, or employee of any business.

OPINION: We have before us your request for an informal advisory opinion on whether you, as judge, may ethically serve as a paid consultant for persons seeking elective office. You indicate that you would be a partner or a co-shareholder in a corporation formed for the purpose of acting as consultants to persons running for elective office. In addition, the partnership or corporation would be formed with an attorney who appears in your court but would not appear in your court if he were your business partner.

Under Canon 5C(2) of the Code of Judicial Conduct a judge should not serve as an officer, director, manager, advisor, or employee of any business. Furthermore, although you state you would not publicly endorse a candidate, "[a] judge should not exploit his judicial position to gain a business advantage, nor should he engage in business dealings that would involve him in frequent transactions with lawyers or persons likely to appear in his court." E.W. Thode, Reporter's Notes to Code of Judicial Conduct 81 (1973). We assume that you would not intentionally exploit your judicial position to further a consulting business however, engaging in such activity may create the appearance of impropriety. See, Code of Judicial Conduct Canon 2. Also, candidates for political office may be lawyers or persons likely to appear before you as Judge. Therefore, we do not believe a consulting business for political candidates is the type of extra-judicial activity a judge should engage in.

Op. 88-7 2

In addition, Canon 7 A(4) of the Code of Judicial Conduct states that a judge should not engage in political activity. The business of consulting candidates for political office we believe could be considered engaging in political activity.

In conclusion, it is our opinion and you are so advised that you should not engage in the business of consulting candidates for political office.

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.