Can a part-time judge appoint a lawyer from the judge's own law firm to serve as a court referee?

Plain-English summary

The Board addressed whether a part-time judge who practices law may appoint an attorney from the judge's own law firm as a referee. The Board first discussed the Code of Judicial Conduct. Canon 3B(4) bars unnecessary appointments, nepotism, and favoritism, and requires appointments on the basis of merit; the Board noted that favoritism, though undefined in the Code, is generally understood as preference based on friendship rather than merit, so Canon 3B(4) could apply to appointing one's own firm members. Canon 2B bars allowing family, social, or other relationships to influence judicial conduct. The Board cited an Indiana opinion advising against a part-time judge appointing a firm attorney as judge pro tem, and its own Op. 89-1 allowing a merit-based appointment of a court employee's spouse.

The Board concluded the question need not be answered under the canons, because a provision of Ohio Ethics Law was determinative. Under R.C. 2921.42(A)(1), no public official shall authorize or use the authority of office to secure authorization of any public contract in which the official, a family member, or a business associate has an interest. Judges are public officials, an employment relationship is a public contract, and partners and associates in a law firm are business associates (citing Ohio Ethics Commission Op. 89-015). The Board therefore advised that R.C. 2921.42(A)(1) prohibits a part-time judge from appointing an attorney in the judge's law firm to the position of referee. The Board also noted that R.C. 102.03(D) may apply where the value of an appointment to a family member or business associate is of a character manifesting a substantial and improper influence on the judge's duties.

Currency note

This opinion issued in 1991 under Ohio's former Code of Judicial Conduct (superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009). The Board's status list also notes it is not current due to subsequent rule amendments to Canons 1 through 6 of the former Code of Judicial Conduct, effective May 1, 1997. The opinion also rests on Ohio Ethics Law statutes (R.C. 2921.42 and R.C. 102.03), which may have been amended 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a part-time judge appoint a lawyer from the judge's own firm as a referee?

A: Under this opinion, no; the Board concluded R.C. 2921.42(A)(1) prohibits it, because the appointment is a public contract in which a business associate (the firm member) has an interest.

Q: Why did the Board rely on the ethics statute rather than the judicial canons?

A: The opinion stated the question need not be answered under the canons because R.C. 2921.42(A)(1) was determinative, though it noted Canons 3B(4) and 2B could also bear on such appointments.

Q: Are law firm partners and associates "business associates" under the statute?

A: Yes. The opinion relied on Ohio Ethics Commission Op. 89-015 that partners and associates in a law firm with which an official is associated are business associates for purposes of R.C. 2921.42(A)(1).

Background and rules framework

The opinion interprets the former Code of Judicial Conduct Canon 3B(4) (appointments based on merit, barring nepotism and favoritism) and Canon 2B (relationships not influencing judicial conduct), and the Ohio Ethics Law statutes R.C. 2921.42(A)(1) (public official securing a public contract in which a business associate has an interest) and R.C. 102.03(D) (using office to secure a thing of value manifesting improper influence).

Citations and references

Rules of Judicial Conduct (Ohio, former):

• Canon 3B(4), appointments on merit; no nepotism or favoritism
• Canon 2B, relationships not influencing judicial conduct

Statutes:

• R.C. 2921.42(A)(1), public contract in which a business associate has an interest
• R.C. 102.03(D), use of office to secure a thing of value of improper-influence character
• R.C. 2921.01(A), definition of public official

Other opinions cited:

• Indiana State Bar Ass'n Op. 5 of 1978 (1978): appointing a firm attorney as judge pro tem
• Ohio Sup.Ct. Op. 89-1 (1989): merit-based appointment of a court employee's spouse
• Ohio Ethics Comm'n Ops. 89-015 (1989), 88-004 (1988)

See also

• Ohio BPC Op. 1989-001: Court Nepotism, Judge's Spouse as Employee
• Ohio BPC Op. 1991-011: Judge on a Nonprofit Board Contracting With the Court
• Ohio BPC Op. 1987-022: Part-Time Judge, Law Partners and Relatives
• Ohio BPC Op. 1990-024: Referee Political Contributions

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-91-023.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 91-23
Issued October 18, 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: Section 2921.42 (A) (1) of the Ohio Revised Code would prohibit a part-time judge from appointing an attorney in his/her law firm to the position of referee.

OPINION: The question presented is whether a part-time judge who practices law may appoint an attorney in his/her law firm as a referee.

Appointments by judges are regulated by The Code of Judicial Conduct and by Ohio Ethics Law and related statutes. Under Canon 3B (4) of the Code of Judicial Conduct, "[a] judge should not make unnecessary appointments. He [she] should exercise his [her] power of appointment only on the basis of merit, eliminating nepotism and favoritism. He [she] should not approve compensation of appointees beyond the fair value of services rendered." Code of Judicial Conduct Canon 3B(4). Failure of even a few judges to comply with the Canon 3B(4) standard can lower the public's esteem for the entire judicial system. E. Thode, Reporter's Notes to the Code of Judicial Conduct 60 (1973).

Although favoritism is not defined in the Code of Judicial Conduct, it is generally defined as "invidious preference and selection based on friendship and factors other than merit." Black's Law Dictionary, 548 (5th ed. 1979). Thus, the Canon 3B(4) prohibition against favoritism could apply to appointments by judges of members of one's law firm.

Another provision of the Code of Judicial Conduct is also applicable to appointments by judges. Canon 2B requires that "[a] judge should not allow his [her] family, social, or other relationships to influence his [her] judicial conduct or judgment." One state's ethics committee, citing Canons 1, 2A and 2B, has advised that a part-time judge should not appoint another attorney in his/her firm as a judge pro tem or to a special panel from which a special judge is selected because such appointment would interfere with public confidence in the integrity and impartiality of the judiciary and convey the impression that those attorneys were in a special position to influence the judge. Indiana State Bar Ass'n, Op. 5 of 1978 (1978).

Previously, this Board has advised that it is not improper under Canon 3B(4) for a judge to appoint the spouse of a current court employee to a court position provided the appointment is based on the spouse's qualifications and not on the relationship to the court employee. Ohio Sup.Ct, Bd. of Comm'rs on Grievances and Discipline, Op. 89-1 (1989).

However, the question this opinion addresses need not be answered under the canons because a provision within Ohio Ethics Law is determinative. Under Section 2921.42 (A) (1) of the Ohio Revised Code, no public official shall knowingly "[a]uthorize, or employ the authority or influence of his [her] office to secure authorization of any public contract in which he [she], a member of his [her] family, or any of his [her] business associates has an interest." For purposes of 2921.42 (A)(1), judges are public officials [OHIO REV. CODE ANN. §2921.01(A)], an employment relationship is a public contract [Ohio Ethics Comm'n, Op. 89-015 (1989)], and partners and associates in a law firm with which an official is associated are 'business associates' [Ohio Ethics Comm'n, Op. 89-015 (1989)]. Accordingly, this Board advises that Section 2921.42 (A) (1) of the Ohio Revised Code would prohibit a part-time judge from appointing an attorney in his/her law firm to the position of referee.

The Board also acknowledges that another provision of Ohio Ethics Law may apply to some appointments by judges. Section 102.03(D) of the Ohio Revised Code requires that "[n]o public official or employee shall use or authorize the use of the authority or influence of his office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon him [her] with respect to his [her] duties." This prohibition would apply to value accruing to a family member or business associate, even though the public official does not benefit personally. See Ohio Ethic Comm'n, Op. 88-004 (1988). Thus, Section 102.03 could be violated by the appointments of family members or business associates where the value is of such a character as to manifest a substantial and improper influence upon a judge with respect to his/her duties.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office. Pursuant to Section 102.08 of the Ohio Revised Code, the requester may reasonably rely on the opinion as it applies to Ohio Ethics Law and related statutes.