If a judge files a disciplinary complaint against a lawyer, is the judge disqualified from that lawyer's cases, and must the lawyer's clients be told?
Ohio BPC Opinion 89-032: Judge Reporting Lawyer Misconduct and Disqualification
Short answer: The Board concluded that a judge must report lawyer misconduct under Canon 3(B)(3) and DR 1-103, and that filing a disciplinary complaint against a lawyer does not, by itself, disqualify the judge from the lawyer's cases or require notifying the lawyer's clients.
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 withdrew this opinion by Opinion 2017-02 on February 10, 2017. It issued in 1989 under Ohio's former Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009) and the former Code of Professional Responsibility, with Canons 1 through 6 amended effective May 1, 1997. Treat this page as historical context, not current guidance. Verify against the current Ohio Codes before relying on any specific rule mentioned here.
Plain-English summary
The question was whether a judge who files a complaint about an apparent violation of the Code of Professional Responsibility by an attorney is, by that act alone, disqualified from hearing any cases involving that attorney, and whether the attorney's clients must be told of the pending complaint.
The Board stated that judges have an ethical duty to report lawyer misconduct under Canon 3(B)(3), which directs a judge to take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware, and under DR 1-103, which obligates a judge to report unethical attorney conduct. It described this duty as absolute and in no sense evidence of partiality, citing Blacknell v. State. It concluded that the filing of a complaint by a judge against an attorney is not, standing alone, grounds for disqualifying the judge from hearing the attorney's cases.
On notice, the Board concluded that filing a disciplinary complaint does not per se require notifying the attorney's clients, noting that proceedings and documents relating to the review and investigation of disciplinary complaints are generally private until a formal complaint is certified by a probable cause panel (Gov. Bar R. V §43). It concluded that disqualification is not automatic when a judge has filed a complaint against an attorney appearing in the judge's courtroom, while adding that the judge can still be disqualified if the totality of the circumstances in a particular case requires it.
Common questions
Q: Must a judge report a lawyer's apparent misconduct?
A: Under this opinion, yes. The Board described the duty to report under Canon 3(B)(3) and DR 1-103 as absolute.
Q: Does filing the complaint disqualify the judge from the lawyer's cases?
A: Not by itself. The Board concluded that filing a complaint is not, standing alone, grounds for disqualification, though the totality of the circumstances might still require it.
Q: Must the lawyer's clients be told about the complaint?
A: The Board concluded notice is not per se required, noting that disciplinary review and investigation are generally private until a formal complaint is certified by a probable cause panel.
Background and rules framework
The opinion interprets Ohio's former Code of Judicial Conduct, Canon 3(B)(3) (duty to take disciplinary measures), the former Code of Professional Responsibility, DR 1-103 (duty to report), and Gov. Bar R. V §43 (confidentiality of disciplinary proceedings).
Citations and references
Rules of Judicial Conduct, Professional Responsibility, and Bar Rules (Ohio):
- Former Code of Judicial Conduct, Canon 3(B)(3), duty to report misconduct
- Former Code of Professional Responsibility, DR 1-103, duty to report
- Gov. Bar R. V §43, confidentiality of disciplinary proceedings
Cases:
- Blacknell v. State, 502 N.E.2d 899 (Ind. 1987), duty to report not evidence of partiality
See also
- Ohio BPC Opinion 1989-009: Prosecutor's Duty to Report a Firm Conflict
- Ohio BPC Opinion 1986-001: Grievance Committee and Crime Reporting
- Ohio BPC Opinion 1989-010: Judge Disqualification When a Third-Degree Relative Appears as Counsel
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-89-032.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 89-32
Issued October 13, 1989
Withdrawn by Adv. 2017-02
[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: It is the ethical duty of a judge to report lawyer misconduct, of which the judge may become aware, under Canon 3(B) (3) of the Code of Judicial Conduct and DR 1-103 of the Code of Professional Responsibility. A judge's filing of a disciplinary complaint against a lawyer does not, by itself, disqualify the judge from hearing any cases involving that lawyer.
OPINION: We have before us your request for an opinion on the following question: when a judge files a complaint concerning an apparent violation of the Code of Professional Responsibility by an attorney, does that act alone disqualify the judge from hearing any cases involving that attorney? You also inquire whether the parties represented by the attorney in question must be informed of the pending disciplinary complaint and how to effectuate any disclosure.
There is no question that judges have an ethical duty to report lawyer misconduct under Canon 3 (B) (3) of the Code of Judicial Conduct which specifically states:
[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware,
In addition, under DR 1-103 of the Code of Professional Responsibility, a judge is obligated to report any unethical conduct by an attorney. This duty is absolute and is in no sense evidence of partiality by the judge. See, Blacknell v. State, 502 N.E.2d 899 (Ind., 1987). The filing of a complaint against an attorney by a judge is not, standing alone, grounds for disqualifying the judge from hearing any cases involving the attorney in question. Id.
In our view, the filing of a disciplinary complaint by a judge against an attorney does not, per se, require notifying the parties represented by the attorney in question. In general, all proceedings and documents relating to the review and investigation of disciplinary complaints are private until a formal written compliant is certified by a probable cause panel. See, Gov. Bar R. V § 43.
In conclusion, it is our opinion and you are so advised that the disqualification of a judge is not automatic when the judge has filed a disciplinary complaint against an attorney appearing in the judge's courtroom. This does not mean that the judge cannot be disqualified if the totality of the circumstances in a particular case require it.
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Codes of Professional Responsibility and Judicial Conduct.