Can a part-time county court judge represent a criminal defendant in another county's court, even one who previously appeared before the judge?

Plain-English summary

The Board addressed whether a part-time county court judge could, in his outside law practice, represent a defendant on a traffic violation pending in a municipal court of another county, where the defendant was not subject to the judge's continuing jurisdiction. Relying on Op. 87-29 and OH. REV. CODE ANN. § 1907.16, the opinion concluded that a county court judge is disqualified from practicing law only as to matters pending or originating in the court in which he serves. Although Canon 5(F) of the Code of Judicial Conduct ordinarily bars a sitting judge from the outside practice of law, the Ohio legislature endorsed limited part-time practice by county court judges, and § 1901.11(A)(2) likewise disqualifies part-time judges only as to matters in the courts in which they serve. The opinion drew further support from a 1967 Attorney General opinion (Op. 67-119) and Ohio State Bar Association Informal Op. 81-4.

The harder question was whether the judge could represent someone who had previously appeared before him in his judicial capacity in an unrelated matter. DR 9-101(A) bars a lawyer from accepting private employment in a matter on the merits of which he has acted in a judicial capacity. Citing ABA Formal Op. 342, which defined "matter" as the same lawsuit or litigation (or facts material to an issue), the Board concluded that representation on a totally new criminal charge would not be improper under DR 9-101(A). The opinion also noted that the CJC Compliance Section A(2) bars a part-time judge from practicing in his own court or any court subject to its appellate jurisdiction, and cautioned that the judge must avoid the appearance of impropriety under Canon 2 and conduct prejudicial to the administration of justice under DR 1-102(A)(5). It added that once the judge acts as an attorney for a defendant, he may be disqualified from later taking judicial action against that individual under Canon 3 C(1).

Currency note

The Board's status list flags this opinion as Not Current due to subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct, effective May 1, 1997. This opinion issued in 1991 under the former Ohio Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009) and the former Code of Professional Responsibility (superseded effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio rules before relying on any specific rule mentioned here.

Common questions

Q: Can a part-time county court judge also defend criminal cases?

A: Under this opinion, yes, in another county. The Board concluded that, consistent with § 1907.16 and § 1901.11(A)(2), a county court judge is disqualified from practice only as to matters in the court he serves, so he may represent a traffic defendant in a municipal court of another county.

Q: Can the judge represent a defendant who once appeared before him?

A: The opinion concluded that representing the same person on a totally new criminal charge is not improper under DR 9-101(A), because that rule reaches only the same matter on the merits of which the judge acted.

Q: Where can the judge not appear as a lawyer?

A: The opinion concluded that, under Compliance Section A(2), the part-time judge could not practice in his own court or in any court subject to its appellate jurisdiction, which the Board noted forbids appearing in mayor's court as well as his county court.

Background and rules framework

The opinion interprets the former Code of Judicial Conduct Canon 5(F) (outside practice of law), Canon 2 (appearance of impropriety), Canon 3 C(1) (disqualification), and Compliance Section A(2) (part-time judge practice limits), together with the former Code of Professional Responsibility DR 9-101(A) (private employment in a matter on which the lawyer acted judicially) and DR 1-102(A)(5) (conduct prejudicial to the administration of justice). It applies OH. REV. CODE ANN. §§ 1907.16, 4705.01, and 1901.11(A)(2).

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 5(F), outside practice of law
• Canon 2, appearance of impropriety
• Canon 3 C(1), disqualification
• Compliance Section A(2), part-time judge practice limits

Rules of Professional Responsibility (Ohio, former):

• DR 9-101(A), private employment in a matter the lawyer judged
• DR 1-102(A)(5), conduct prejudicial to the administration of justice

Statutes:

• OH. REV. CODE ANN. § 1907.16, county court judge practice limits
• OH. REV. CODE ANN. § 4705.01, judges and the practice of law
• OH. REV. CODE ANN. § 1901.11(A)(2), part-time judge practice limits

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Formal Op. 342: definition of "matter"
• Ohio Board, Op. 87-29 (1987): county court judges practicing law
• Ohio Attorney General, Op. 67-119 (1967): county court judge representing defendants in other counties
• Ohio State Bar Association, Informal Op. 81-4: county court judge representing defendants in another court

See also

• Ohio BPC Op. 1987-029: County Court Judges Practicing Law
• Ohio BPC Op. 1987-022: Part-Time Judge, Law Partners, and Relatives
• Ohio BPC Op. 1988-008: Part-Time Prosecutors and Criminal Defense

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-002.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 91-2
Issued February 8, 1991

[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: Under the appropriate circumstances a county court judge in his part-time practice of law may represent a defendant on a traffic violation pending in a municipal court of another county.

OPINION: We have before us your request for an opinion on questions dealing with county court judges and their outside practice of law. You inquire as to whether a judge of a county court may represent a defendant on a traffic violation pending in a municipal court of another county. Further, you ask if the particular defendant in question previously appeared before the county court judge, whether this fact disqualifies him as an attorney from representing this same defendant. You further stipulate that the defendant charged with the traffic offense is not on probation or serving a suspended sentence or in anyway subject to the judge's continuing jurisdiction.

The Board of Commissioners in Op. 87-29 addressed the first branch of the question posed. This opinion noted that under OH. REV. CODE ANN. § 1907.16 a judge of a county court is disqualified from the practice of law only as to matters pending or originating in that county court during his term of office. In Op. 87-029, the Board stated that county court judges may engage in the practice of law provided they do not practice in a county court in which they serve as judge.

Ordinarily, the Code of Judicial Conduct prohibits a sitting judge from the outside practice of law. See Canon 5 (F), Code of Judicial Conduct. However, the Ohio Legislature has endorsed the limited part-time practice by a county court judge in OH. REV. CODE ANN. § 1907.16. The intent of the legislature is clear on this point. Further, OH. REV. CODE ANN. § 4705.01 forbids judges from practicing law with an exception for part-time judges found in OH. REV. CODE ANN. § 1901.11 (A) (2). OH. REV. CODE ANN. § 1901.11 (A) (2) provides that part-time judges are disqualified from the practice only as to matters pending or originating in the courts in which they serve.

In 1967, the Attorney General rendered Op. 67-119 stating the following:

A county court judge may not represent defendants wherein the State of Ohio is plaintiff in criminal actions instituted in a county court to which that judge is elected. A county court judge may, however, represent defendants wherein the State of Ohio is plaintiff in criminal actions which originate in courts of the county other than the one to which he was elected to serve as judge.

The Ohio State Bar Association provides additional authority in Informal Op. 81-4 by agreeing with the analysis and opinion of the Ohio Attorney General that a county court judge could represent defendants in a court other than his own. The Board concurs.

The more difficult aspect of your hypothetical question is whether the part-time county court judge in his capacity as a criminal defense attorney should represent someone who has appeared before him in his judicial capacity albeit in an unconnected matter. DR 9-101 (A) of the Code of Professional Responsibility states that a lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity.

Various opinions have discussed the precise meaning of the language contained in DR 9-101. The American Bar Association in Formal Op. 342 defined "matter" as it appears in DR 9-101: "the same lawsuit or litigation, (or facts material to an issue) is the same matter." This opinion defining "matter" also squares with Informal Op. 79-1 and Op. 81-1 issued by the Ohio State Bar Association. Therefore, because your question contemplates representation on a totally new criminal charge, it would not be ethically improper under DR 9-101 (A) for the county court judge in his part-time practice of law to represent the same person who had appeared before him in a judicial capacity on a different criminal case.

In Ohio, county court judges are defined as part-time judges for purposes of compliance with the Code of Judicial Conduct. Section A (2) of the compliance provisions also regulates the outside practice of law that part-time judges may engage in.

[A part-time judge] should not practice law in the court on which he serves or in any court subject to the appellate jurisdiction of the court on which he serves, or act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto. CJC Compliance § A (2).

As discussed above, the Board does not find that your question of representation of a criminal defendant would be a "related proceeding." The appellate jurisdiction language in (A) (2) forbids the judge from appearing in an inferior court from which an appeal could be taken to the court on which he or she serves. This forbids a county court judge from representing anyone in mayor's court as well as his or her county court.

In undertaking any representation, the part-time judge practicing as an attorney must make certain that such representation does not give the appearance of impropriety or in any way trade upon his position and influence. Code of Judicial Conduct Canon 2. There are facts and circumstances that might lead observers to believe that the judge (practicing as an attorney) is engaged in conduct prejudicial to the administration of justice in violation of DR 1-102 (A) (5). In a similar vein, once the judge acts as an attorney for an individual defendant he may be disqualified from ever taking any judicial action against that individual in the future because of personal knowledge that would come to him in the attorney/client relationship. Future actions undertaken as a judge would them be circumscribed by the terms of Canon 3 C (1) (a), (b) and (d) (ii) of the Code of Judicial Conduct.

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