Must a judge step aside when a lawyer in the case works with the judge's spouse, or rents office space from the judge?

Plain-English summary

The Board addressed when a Probate/Juvenile judge must disqualify herself in two situations: where a lawyer in the proceeding is employed by, associated with, or in partnership with the judge's spouse, and where a lawyer in the proceeding rents office space in a building co-owned by the judge and the judge's spouse. The opinion set out Canon 3 C(1)'s general standard, disqualification where the judge's impartiality might reasonably be questioned, and its four specific standards in 3 C(1)(a)-(d).

On the spouse's firm, the Board observed that none of the specific standards squarely covers a lawyer affiliated with a lawyer-relative's firm, and that the Commentary to Canon 3 C(1)(d) states such affiliation does not of itself disqualify the judge. The opinion concluded that disqualification is not automatically required; whether the judge's or spouse's interest could be substantially affected, or impartiality might reasonably be questioned, must be decided case by case, with a critical question being whether the spouse's relationship to the lawyer creates a financial interest. The Board noted the Canon 3 D disclosure-and-waiver alternative for disqualifications based on economic interest or family relationship.

On the landlord-tenant situation, the opinion concluded that a judge should disqualify herself, because the personal and financial nature of a landlord-tenant relationship between judge and lawyer creates the appearance of impropriety and may prejudice parties. It relied on ABA Informal Op. 1070 and similar opinions from Virginia, Michigan, and Maryland, applying the Canon 3 C general impartiality standard and the 3 C(1)(d)(iii) interest standard.

Currency note

The Board's status list flags this opinion as Withdrawn by Adv. Op. 2023-05 on June 9, 2023, and 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 This opinion issued in 1991 under the former Ohio Code of Judicial Conduct (superseded by the Ohio Code of Judicial Conduct effective March 1, 2009). 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 Treat this page as historical context, not current guidance.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 Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Does a judge have to recuse whenever a lawyer in the case works with the judge's spouse?

A: Under this opinion, no, not automatically. The Board concluded disqualification turns case by case on whether the judge's or spouse's interest could be substantially affected or impartiality might reasonably be questioned.

Q: When does the spouse connection require recusal?

A: The opinion concluded a judge should disqualify herself under Canon 3 C(1)(d)(iii) if she knows her spouse has an interest that could be substantially affected by the outcome, or under Canon 3 C(1) if a reasonable person knowing the circumstances would question her impartiality.

Q: What about a lawyer who rents office space from the judge?

A: The opinion concluded a judge should disqualify herself from a proceeding in which a lawyer rents office space in real estate co-owned by the judge and her spouse, because the landlord-tenant relationship creates the appearance of impropriety.

Q: Is there an alternative to stepping down entirely?

A: The opinion noted Canon 3 D allows a judge disqualified under 3 C(1)(c) or (d) to disclose the basis on the record and continue if the parties and lawyers all agree in writing that the relationship is immaterial or the financial interest insubstantial.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 2 (avoiding impropriety and its appearance), Canon 3 C(1) (disqualification standards, general and specific), and Canon 3 D (disclosure and waiver).

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 2, avoiding impropriety and its appearance
• Canon 3 C(1), general and specific disqualification standards
• Canon 3 D, disclosure and waiver

Other opinions cited:

• Ohio Board, Ops. 87-22, 87-24, 87-38 (1987), 88-5, 89-10, 89-19 (1989), 90-17 (1990): relatives and spouses appearing before the judge
• Ohio State Bar Ass'n, Informal Op. 84-2 (1984): probate judge and spouse's firm
• ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1070 (1969): judge renting to lawyers
• Virginia State Bar Op. 552 Rev.; State Bar of Michigan Op. CI-605, CI-1091; North Carolina Bar Ass'n Op. CPR 367; Maryland State Bar Ass'n Op. 82-47

See also

• Ohio BPC Op. 1987-024: Judge, Spouse as Prosecutor, Recusal
• Ohio BPC Op. 1987-038: Judge, Referee, Spouse Prosecutor, Multiple Recusals
• Ohio BPC Op. 1987-023: Recusal When an Election Opponent Represents a Party

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-008.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 91-8
Issued April 12, 1991
Withdrawn by Adv. Op. 2023-05

[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: When an attorney is employed by, associated with or in partnership with a judge's spouse, disqualification of that judge from a proceeding in which the attorney appears before the judge is not automatically required by Canon 3 C of the Code of Judicial Conduct. Whether the interest of the judge or judge's spouse could be substantially affected by the outcome of such a proceeding or whether impartiality might reasonably be questioned would need to be determined on a case by case basis. However, a judge should disqualify herself from a proceeding in which a lawyer in the proceeding rents office space in real estate co-owned by the judge and the judge's spouse.

OPINION: We have before us a request for an advisory opinion on the following questions regarding judicial disqualification:

1. Whether a Probate/Juvenile judge should disqualify herself in a proceeding in which an attorney appears as a lawyer, a party, or a fiduciary to a party in the proceeding, when the attorney is either employed by, associated with, or in partnership with the judge's spouse;

2. Whether a Probate/Juvenile judge should disqualify herself from a proceeding in which an attorney in the proceeding rents office space in a building co-owned by the judge and the judge's spouse?

Canon 3 of the Code of Judicial Conduct (Judicial Code) mandates that "[a] judge should perform the duties of his office impartially and diligently." In order to do so, a judge must, at times, disqualify herself from a proceeding. Specific rules governing judicial disqualification are contained within Canon 3 C of the Judicial Code. Canon 3 C (1) sets forth a general standard of disqualification, followed by four specific disqualification standards identified in 3 C (1) (a,b,c,d).

The general standard of disqualification in Canon 3 C (1) is that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned." Under this general standard, "[a]ny conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge's 'impartiality might reasonably be questioned' is a basis for the judge's disqualification." E. Thode, Reporter's Notes to Code of Judicial Conduct 60 (1973). The reporter explains that "impropriety or the appearance of impropriety in violation of Canon 2 that would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls within the scope of the general standard [enunciated in Canon 3 C], as does participation by the judge in the proceeding if he thereby creates the appearance of a lack of impartiality." Id. 61.

Under the four specific disqualification standards a judge's impartiality might reasonably be questioned in instances when:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(c) he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a substantial financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(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:

(i) is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) is acting as a lawyer in the proceeding;

(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) is to the judge's knowledge likely to be a material witness in the proceeding.

Code of Judicial Conduct 3 C (1) (a,b,c,d).

None of these criteria addresses the situation where a lawyer in a proceeding is affiliated with a law practice of the judge's spouse. However, commmentary to the Judicial Code indicates that a judge's recusal is not automatically required in proceedings involving the firm of a judge's spouse.

The fact that a lawyer in a proceeding is affiliated with a law firm with which a lawyer-relative of the judge is affiliated does not of itself disqualify the judge. Under appropriate circumstances, the fact that "his impartiality might reasonably be questioned" under Canon 3 C (1), or that the lawyer-relative is known by the judge to have an interest in the law firm that could be "substantially affected by the outcome of the proceeding" under Canon 3C(1) (d) (iii) may require his disqualification.

Code of Judicial Conduct Canon 3 C (1) (d) commentary.

The Commentary suggests that conflicts created by a lawyer being affiliated with a law firm of a lawyer/relative of the judge should be analyzed under the Canon 3 C (1) general objective standard of whether "impartiality might reasonably be questioned" and under the 3 C (1) (d) (iii) standard that the judge or spouse "is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding."

This Board has issued several opinions regarding judicial disqualification. As to relatives appearing before the judge the Board has opined that a judge should disqualify himself from any proceeding in which his son or daughter is a lawyer, Ohio SupCt, Op. 87-22 (1987); a judge should recuse himself when the judge's spouse is a party to or a lawyer in a proceeding, Ohio SupCt, Op. 87-24 (1987); a referee should disqualify herself where her spouse is acting as a lawyer in the proceeding, Ohio SupCt, 87-38 (1987); an acting judge cannot hear cases when a lawyer is related within the third degree to the appointing judge, Ohio SupCt, Op. 88-5 (1988); a judge must disqualify himself when the judge's brother-in-law appears as a party or as a lawyer, Ohio SupCt, Op. 89-10 (1989); a judge should be disqualified when the judge's spouse is likely to be a material witness in a proceeding before the judge, Ohio SupCt, 89-19 (1989); a probate judge is disqualified from presiding over any matters where one of the lawyers is related within the third degree of relationship. Ohio SupCt, Op. 90-17 (1990).

Only once has the Board addressed the issue of disqualification in proceedings involving the firm of a full-time referee's spouse. Ohio SupCt, 87-38 (1987). While acknowledging that the Commentary to Canon 3 C (1) (d) (ii) of the Judicial Code did not require automatic disqualification, the Board stated that "the fact that the referee's impartiality might reasonably be questioned under Canon 3 C (1) would be enough to require her disqualification." Id.

Other ethics committees have addressed the issue of judicial disqualification in proceedings involving appearances by a lawyer affiliated with the firm of the judge's spouse. If a probate judge removes herself from all matters in which her spouse or a member of his firm has an interest as attorney, fiduciary, or client there would be no violation of the Code of Judicial Conduct or the Code of Professional Responsibility. Ohio State Bar Ass'n, Informal Op. 84-2 (1984). A judge may hear a case conducted by an attorney who is a member of the same law firm as the judge's spouse provided the judge discloses the relationship to all parties to the proceeding and the parties request the judge to continue. State Bar of Michigan, Op. CI-605 (1981). A judge is not required to disqualify himself because a partner or associate of a relative is a lawyer in the proceeding. North Carolina Bar Ass'n, Op. CPR 367 (1985).

No bright line separates practice arrangements which do and do not create conflicts requiring judicial disqualification. A critical question is whether the spouse's employment by, association with, or partnership with the attorney creates a financial interest between the attorney in the proceeding and the judge's spouse. It is the Board's opinion that disqualification of a judge from a proceeding in which an attorney employed by, associated with or in partnership with a judge's spouse, appears before the judge is not automatically required by Canon 3 C of the Judicial Code. Whether the interest of the judge or judge's spouse could be substantially affected by the outcome of a proceeding or whether impartiality might reasonably be questioned would need to be determined on a case by case basis.

If the judge knows her spouse has an interest that could be substantially affected by the outcome of the proceeding then the judge should disqualify herself under Canon 3 C (1) (d) (iii) of the Judicial Code. Further the judge should disqualify herself under 3 C (1) if her impartiality might reasonably be questioned by a reasonable person knowing all the circumstances.

To prevent hardship to litigants that could be brought about by the delay in obtaining another judge to replace a disqualified judge, Canon 3 D of the Judicial Code offers full disclosure and waiver as an alternative to disqualification when the disqualification is necessitated by an economic interest or a family relationship. E. Thode, Reporter's Notes to Code of Judicial Conduct 71 (1973). Under the Judicial Code,

[a] judge disqualified by the terms of Canon 3C (1) (c) or Canon 3C (1) (d) may, instead of withdrawing from the proceeding, disclose on the record the basis of his disqualification. If based on such disclosure, the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship is immaterial or that his financial interest is insubstantial, the judge is no longer disqualified, and may participate in the proceeding. The agreement, signed by all parties and lawyers, shall be incorporated in the record of the proceeding.

Code of Judicial Conduct Canon 3 D (emphasis added).

A judge should, however, disqualify herself from a proceeding when an attorney in the proceeding rents office space from both the judge and judge's spouse who co-own the office building.

The ABA Committee on Ethics and Professional Responsibility has expressed the opinion that so long as the judge maintains an interest in a building and rents space to lawyers, the judge should not preside in matters presented by these lawyers. Informal Op. 1070 (1969). Ethics committees in several states have expressed similar positions. A judge who owns real estate with a lawyer must disqualify himself from proceedings in which partners of the co-owner represent clients, unless there is waiver of disqualification after full disclosure. Virginia State Bar, Op. 552 Rev. (1983, 1985). A lawyer, his partners, and associates, may not appear in court before a district judge with whom the lawyer jointly owns and manages real estate. State Bar of Michigan, Op. CI-1091 (1985). When a judge is a firm's landlord and when the son of the judge is "of counsel" to the firm, the judge should decline to hear a matter argued by lawyers of that firm. Maryland State Bar Ass'n, Op. 82-47(1982).

The personal and financial nature of a landlord-tenant relationship between a judge and lawyer creates the appearance of impropriety, suggests impartiality and may cause prejudice to parties appearing before the judge. Thus, in answer to your question, it is the opinion of the Board that under the 3 C general standard of impartiality and the 3 C (1) (d) (iii) interest standard, a judge should disqualify herself from a proceeding in which a lawyer in the proceeding rents office space in real estate co-owned by the judge and the judge's spouse.

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