Must a judge disqualify when the lawyer in the case is the judge's brother-in-law, and can the parties waive it?
Ohio BPC Opinion 89-010: Judge Disqualification When a Third-Degree Relative Appears as Counsel
Short answer: The Board concluded that a judge must disqualify from any proceeding in which a person within the third degree of relationship, including a spouse's brother, appears as a party or lawyer, but may participate if the judge discloses the basis on the record and the parties and lawyers all agree in writing that the relationship is immaterial.
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The Board flags this opinion as not current: it issued in 1989 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009), and Canons 1 through 6 were later amended effective May 1, 1997. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct (its disqualification and waiver-of-disqualification rules) before relying on any specific rule mentioned here.
Plain-English summary
A judge asked about hearing criminal cases in which one of the parties was represented by the judge's brother-in-law. The City Law Director had consented to the judge's involvement, but the brother-in-law had objected in certain instances.
The Board pointed to Canon 3C(1)(d)(ii) of the Code of Judicial Conduct, which directs a judge to disqualify where the judge, the judge's spouse, or a person within the third degree of relationship to either of them is a party or acting as a lawyer in the proceeding. It noted that the commentary's examples of a third-degree relationship include the brother of the judge or the judge's spouse, so persons in that relationship are explicitly barred from presiding over actions involving each other.
The Board then described the waiver available under Canon 3D. To prevent undue hardship from blanket disqualification, the judge may proceed if the judge discloses the basis of the disqualification on the record and the parties and the lawyers all agree in writing that the relationship is immaterial. Applying this, the Board concluded the judge had to disqualify on the record at the outset of any proceeding in which the wife's brother appeared as counsel, but could conduct the proceeding if the parties and their counsel independently executed a written agreement, made part of the record, that the family relationship was immaterial.
Common questions
Q: Must a judge step aside when a brother-in-law is the lawyer in the case?
A: Under this opinion, yes. The Board concluded that a spouse's brother falls within the third-degree-relationship prohibition of Canon 3C(1)(d)(ii), requiring disqualification.
Q: Can the parties waive the disqualification?
A: The opinion described a Canon 3D waiver: the judge discloses the basis on the record, and the parties and lawyers all agree in writing that the relationship is immaterial, with the agreement made part of the record.
Q: Did the City Law Director's consent resolve the issue?
A: The opinion did not treat the Law Director's consent as sufficient; it required disclosure on the record and a written agreement by the parties and their counsel that the relationship was immaterial.
Background and rules framework
The opinion interprets Ohio's former Code of Judicial Conduct, Canon 3C(1)(d)(ii) (disqualification where the judge, spouse, or a third-degree relative is a party or lawyer) and Canon 3D (remittal of disqualification by written agreement after disclosure on the record). Ohio later replaced this framework with the current Ohio Code of Judicial Conduct.
Citations and references
Rules of Judicial Conduct (Ohio):
- Former Code of Judicial Conduct, Canon 3C(1)(d)(ii), disqualification for a third-degree relationship
- Former Code of Judicial Conduct, Canon 3D, waiver of disqualification by written agreement
See also
- Ohio BPC Opinion 1987-024: Judge's Spouse as Prosecutor, Recusal
- Ohio BPC Opinion 1987-038: Judge/Referee Spouse Prosecutor, Multiple Recusals
- Ohio BPC Opinion 1988-005: Acting Judge Disqualification, Appointing Judge's Relative
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-010.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 89-10
Issued April 14, 1989
[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: A judge must disqualify himself or herself from all proceedings in which any person within the third degree of relationship appears as a party or as a lawyer before the judge. However, if the judge discloses on the record the basis of his disqualification and the parties and lawyers involved all agree in writing that the relationship is immaterial, then the judge may participate in the proceeding.
OPINION: We have before us your request for an advisory opinion regarding the propriety of you, as a judge, hearing criminal cases when one of the parties is represented by your brother-in-law. In your request you indicate that the City Law Director has consented to your involvement in such cases but that your brother-in-law has objected in certain instances.
The Code of Judicial Conduct directly addresses such a situation, Canon 3C (l) (d) (ii) states that:
judge should disqualify himself . . . where . . . he or his spouse, or a person within the third degree of relationship to either of them . . . is a party to the proceeding or . . . is acting as a lawyer in the proceeding.
Examples of a third degree relationship are given in the commentary and they include the brother of the judge or the judge's spouse. Persons having such a relationship are explicitly barred from presiding over any action involving each other.
However, to prevent undue hardship that might arise from such blanket disqualifications a waiver may be invoked. Code of Judicial Conduct, Canon 3D. In order to qualify under this provision, the judge must disclose on the record the basis of his disqualification. The parties and the lawyers must all agree in writing that the judge's relationship is immaterial. If both of these requirements are met, then the judge may participate in the proceeding.
In conclusion, it is our opinion that you must disqualify yourself on the record at the outset of any proceeding in which your wife's brother appears as counsel. Such a relationship falls squarely within the third degree relationship prohibition. However, if the parties and their lawyers agree in writing that your family relationship is immaterial then you may conduct the proceeding. The parties and their counsel must independently execute such an agreement and the agreement must be made a part of the record. Code of Judicial Conduct, Canon 3D.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.