Must a probate judge disqualify from an uncontested estate when one of the lawyers is related to the judge within the third degree?

Plain-English summary

The Board addressed whether probate judges are disqualified from proceedings, including the uncontested filing and processing of an estate, where one of the lawyers involved is related to the sitting judge within the third degree of relationship. It quoted Canon 3C(1), under which a judge should disqualify in a proceeding where the judge's impartiality might reasonably be questioned, including where the judge, the judge's spouse, or a person within the third degree of relationship to either is acting as a lawyer in the proceeding, per Canon 3C(1)(d)(ii). The degree of relationship is defined by the civil law system set out in the commentary following Canon 3C(3).

The Board explained that the rule prevents a client from believing that special favor can be obtained by retaining a judge's relative as attorney, citing Abramson, and noted that the South Dakota Supreme Court censured a judge who frequently let his wife practice before him in probate and guardianship matters (In re Heuermann). It reasoned that an uncontested matter before a probate judge may become contested as it proceeds, and that the probate judge approves the fees paid to the lawyer in the uncontested matter. For those reasons and to avoid any appearance of impropriety, the Board concluded that a probate judge may not preside over the uncontested filing and processing of an estate by a relative within the third degree, and is disqualified from any matter where one of the lawyers is so related.

Currency note

This is a former Code of Judicial Conduct opinion, providing advice under the former Ohio Code of Judicial Conduct that was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009; the Board also flags it as not current in light of subsequent amendments to Canons 1 through 6 effective May 1, 1997. It issued in 1990. Treat this page as historical context, not current guidance.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.

Common questions

Q: Does the disqualification rule apply even when an estate is uncontested?

A: Under this opinion, yes. The Board concluded a probate judge may not preside over the uncontested filing and processing of an estate where a lawyer is related to the judge within the third degree.

Q: Why does an uncontested matter still require disqualification?

A: The Board reasoned that an uncontested matter may become contested as it proceeds and that the probate judge approves the lawyer's fees, so presiding would risk an appearance of impropriety.

Q: How is the third degree of relationship measured?

A: The Board stated the degree of relationship is defined by the civil law system, set out in the commentary following Canon 3C(3).

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 3C(1) (disqualification where impartiality might reasonably be questioned) and Canon 3C(1)(d)(ii) (a relative within the third degree acting as a lawyer), with the degree of relationship defined per the commentary to Canon 3C(3).

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 3C(1), disqualification where impartiality might reasonably be questioned
• Canon 3C(1)(d)(ii), relative within the third degree acting as a lawyer
• Canon 3C(3) commentary, civil-law definition of degree of relationship

Cases:

• In re Heuermann, 240 N.W.2d 603 (S.D. 1976), censure of a judge who let his wife practice before him

Other authorities cited:

• Abramson, Judicial Disqualification under Canon 3C of the Code of Judicial Conduct 51 (Am. Judicature Society, 1986)

See also

• Ohio BPC Op. 1989-034: Judge as Party Recusal When the Judge's Own Attorney Appears
• Ohio BPC Op. 1989-032: Judge Reporting Lawyer Misconduct and Disqualification
• Ohio BPC Op. 1987-024: Judge's Spouse as Prosecutor and Recusal

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-017.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 90-17
Issued August 17, 1990

[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 is disqualified from any case where his or her impartiality may reasonably be questioned. Under Canon 3C(1)(d)(ii), a judge must disqualify himself or herself from any case where one of the lawyers is related to the judge or the judge's spouse within the third degree of relationship. Probate judges must comply with this Code provision in all proceedings including the filing and processing of an uncontested estate before the judge.

OPINION: We have before us your request for an opinion on whether probate judges are disqualified from proceedings, including the uncontested filing and processing of an estate, where one of the lawyers involved is related to the sitting judge within the third degree of relationship.

Canon 3C (1) (d) (ii), as you indicate in your request, provides:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where: . . . (d) he or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person: . . . (ii) is acting as a lawyer in the proceeding . . .

The degree of relationship is defined according to the civil law system and is set forth in the commentary following Canon 3C (3). This rule prevents a client from believing that "special favor and consideration can be obtained in a case through retention of a judge's relative as attorney." Abramson, Judicial Disqualification under Canon 3C of the Code of Judicial Conduct 51 (Am. Judicature Society, 1986).

The Supreme Court of South Dakota censured a judge who frequently allowed his wife to practice law before him in probate and guardianship matters. In re Heuermann, 240 N.W.2d 603 (S.D. 1976).

A concern is that an uncontested matter before the probate judge may become contested as it proceeds through probate court. Furthermore, the probate judge approves the fees to be paid to the lawyer in the uncontested matter. For these reasons and to avoid any appearance of impropriety, a probate judge may not preside over the uncontested filing and processing of an estate by a relative within the third degree of relationship to the judge or the judge's spouse.

In conclusion, it is our opinion and you are so advised that a probate judge is disqualified from presiding over any matters where one of the lawyers is related to the judge within the third degree of relationship.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Judicial Conduct.