Can a probate judge serve on a community mental health board after a new law routes mental-health referrals through that board?
Ohio BPC Opinion 89-029: Probate Judge Serving on a Community Mental Health Board
Short answer: The Board concluded that, because a 1989 amendment to R.C. Ch. 5122 routes mental-health referrals through community mental health boards, a probate judge or anyone performing judicial functions in the probate court should no longer serve on such boards.
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
This opinion was issued in 1989 under Ohio's former Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009; the statute it relies on, Ohio Rev. Code Ch. 5122, has also changed since. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct and current statutes before relying on any specific rule mentioned here.
Plain-English summary
The question was whether it would be a conflict of interest for a probate judge or probate court personnel to serve as a member of a community mental health board. The Board noted a new law, effective July 1, 1989, under which the probate court reviews and refers mentally ill persons subject to hospitalization to a community mental health board or its designated agency (R.C. Ch. 5122).
In light of that law, the Board concluded that a probate judge's appointment to or service on such a board may be a conflict of interest and would create the appearance of impropriety. It cited Canon 2 (promoting public confidence in the integrity and impartiality of the judiciary) and Canon 3C(1) (disqualification where impartiality might reasonably be questioned). It explained that Canon 5B allows judges to serve on boards unless the activity would reflect adversely on impartiality or interfere with judicial duties, and that under Canon 5B(1) a judge should not serve on a board that will be engaged in proceedings ordinarily coming before the judge. Because the community mental health board is involved in all stages of the probate court's proceedings under Ch. 5122, the Board concluded that serving on it would reflect adversely on the judge's impartiality and interfere with judicial duties. It noted that court referees performing judicial functions in the probate court are likewise covered (Compliance Section), while the Board has no authority over court personnel who do not perform judicial functions. It concluded that probate judges and those performing judicial functions should no longer serve on community mental health boards.
Common questions
Q: Can a probate judge sit on a community mental health board?
A: Under this opinion, no, after the 1989 law. The Board concluded that because the board is involved in all stages of the probate court's Ch. 5122 proceedings, a judge should no longer serve.
Q: Does this apply to probate court referees too?
A: Yes, for those performing judicial functions. The Board concluded the opinion applies to probate court referees and others performing judicial functions under Ch. 5122.
Background and rules framework
The opinion interprets Ohio's former Code of Judicial Conduct, Canon 2 (public confidence), Canon 3C(1) (disqualification), and Canon 5B and 5B(1) (board service and its limits), against the 1989 amendment to Ohio Rev. Code Ch. 5122 directing probate-court referrals to community mental health boards.
Citations and references
Rules of Judicial Conduct (Ohio):
- Former Code of Judicial Conduct, Canon 2; Canon 3C(1); Canon 5B and 5B(1); Compliance Section
Statutes:
- Ohio Rev. Code Ch. 5122 (Baldwin 1989), probate-court referral to community mental health boards
See also
- Ohio BPC Opinion 1989-003: Judge Serving on a College Board of Trustees
- Ohio BPC Opinion 1987-003: Judge Serving on a Foundation Board
- Ohio BPC Opinion 1987-013: Judge on a Governmental Task Force (Canon 5G)
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-029.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 89-29
Issued August 18, 1989
SYLLABUS: Based upon a recent change in Ohio Rev. Code Ch. 5122, directing probate court judges to refer mentally ill persons to community mental health boards, it is our opinion that probate court judges should no longer accept appointments for, or serve on, such boards.
OPINION: We have before us your request for an advisory opinion on whether it would be a conflict of interest for a probate judge or probate court personnel to serve as a member of a community mental health board. Under a new law, effective July 1, 1989, the probate court reviews and refers mentally ill persons subject to hospitalization to a community mental health board or its designated agency. See, Ohio Rev. Code Ch. 5122 (Baldwin 1989).
In light of this law, a probate judge's appointment to, or service on community mental health boards may be a conflict of interest and would create the appearance of impropriety. Under Canon 2 of the Code of Judicial Conduct, judges are required to conduct themselves in a manner that promotes public confidence in the integrity and impartiality of the judiciary. In addition, Canon 3C(1) requires a judge's disqualification in cases where the judge's impartiality might reasonably be questioned.
Canon 5B allows judges to engage in certain extra-judicial activities, such as serving on boards, unless the activity would reflect adversely upon the judges' impartiality or interfere with the proper performance of judicial duties. Code of Judicial Conduct, Canon 5B. Furthermore, a judge should not serve on any board or similar organization which will be engaged in proceedings that would ordinarily come before the judge or an organization regularly engaged in adversary proceedings in any court. Code of Judicial Conduct, Canon 5B(l). The community mental health board is involved in all stages of the probate court proceedings under Ohio Rev. Code Ch. 5122. A probate judge serving on such a board would therefore reflect adversely on his or her impartiality and interfere with judicial duties.
Court referees are also required to comply with the Code of Judicial Conduct. Code of Judicial Conduct, Compliance Section. Therefore, this opinion applies to the probate court referees or anyone performing judicial functions in the probate court under Ohio Rev. Code Ch. 5122. This Board has no authority to advise you regarding any court personnel who do not perform judicial functions.
In conclusion, it is our opinion and you are so advised that probate court judges or those performing judicial functions should no longer serve on community mental health boards because of their new functions under Ohio Rev. Code Ch. 5122.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.