Can an attorney who is a court administrator write a law handbook for a publisher that sells books to the court and keep the royalties?

Plain-English summary

The Board addressed whether an attorney who serves as court administrator for a juvenile division of a common pleas court may author a juvenile law handbook for a legal publisher and receive royalties, when that publisher occasionally sells legal books to the court. The court administrator proposed to delegate all responsibility for the court's purchase of legal books to the court's legal director, supervised by a juvenile judge, under a local rule permitting attorney court employees to do outside work absent a conflict. The Board analyzed the question under Ohio Ethics Law and related statutes.

Under R.C. 102.03(D) and (E), the Board found that the offer of authorship and the royalties are substantial things of value and that the publisher, as a seller of books to the court, would be an improper source, but reasoned that the influence would not bear on the administrator's duties if he delegated authority over book purchases, which the Board treated as withdrawing from the conflicting matter. The Board emphasized that whether to allow such delegation is for the court to decide, that the administrator's public duties must outweigh personal interests, and that he should not use court time, facilities, or resources to author the handbook. On those conditions, accepting the authorship and royalties is not improper under R.C. 102.03(D) or (E).

The Board then applied R.C. 2921.42. A court's purchase of law books is a public contract, and the administrator's royalty interest is direct, definite, and pecuniary, making it a prohibited interest, with the publisher a business associate. Accordingly, receiving royalties is improper under R.C. 2921.42(A)(4) unless the safe harbor of R.C. 2921.42(C) is satisfied, and it is improper under R.C. 2921.42(A)(1) for the administrator to use the authority of his office to secure the book-purchase contract. Finally, under R.C. 2921.43(A), it is not improper for the administrator to receive royalties so long as authoring the handbook is not an official duty for which he receives public compensation.

Currency note

This opinion issued in 1992. It interprets Ohio Ethics Law and related statutes (R.C. Chapter 102 and R.C. 2921.42 and 2921.43) as they stood at the time; the Ohio Rules of Professional Conduct superseded the former Code of Professional Responsibility effective February 1, 2007, and the Ohio Code of Judicial Conduct was superseded effective March 1, 2009. Subsequent statutory or rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Ethics Law and rules before relying on any specific provision mentioned here.

Common questions

Q: Can a court administrator write a law handbook for royalties?

A: Under this opinion, yes, conditionally. The Board concluded it is not improper under R.C. 102.03(D) or (E) if the administrator does not use his office to secure the offer, delegates authority over the court's book purchases, and does not use court resources to write it.

Q: Does the conflict-of-interest statute still apply?

A: Yes. The opinion concluded that receiving royalties is improper under R.C. 2921.42(A)(4) unless the safe-harbor conditions of R.C. 2921.42(C) are met, because the royalty interest is a prohibited interest in the court's book-purchase contract.

Q: How does delegation help?

A: The opinion treated delegating authority over book purchases to the legal director, with court permission, as the administrator withdrawing from the conflicting matter, which removes the influence on his duties under R.C. 102.03.

Background and rules framework

The opinion interprets Ohio Ethics Law, R.C. 102.03(D) and (E) (use of office and acceptance of things of value), and R.C. 2921.42(A)(1) and (4) with the safe harbor in R.C. 2921.42(C) (public-contract interests), and R.C. 2921.43(A) (supplemental compensation). The avoidance-of-improper-influence principle parallels Canon 2 of the Model Code of Judicial Conduct.

Citations and references

Statutes:

• Ohio Rev. Code Ann. Sections 102.03(D), (E), 102.01(B), (C), (F)(2), (G), 102.08 (Baldwin 1987)
• Ohio Rev. Code Ann. Sections 2921.42(A)(1), (A)(4), (C), (E)(1), 2921.43(A), 2921.01(A) (Baldwin 1992); Section 1.03 (Baldwin 1990)

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 92-14 (1992)
• Ohio Ethics Commission, Op. 85-014 (1985); Op. 89-014 (1989); Op. 90-002 (1990); Op. 89-006 (1989); Op. 81-008 (1981)

See also

• Ohio BPC Op. 1992-014: Referees and Magistrates Soliciting Conference Support
• Ohio BPC Op. 1991-028: Court of Claims Clerk Financial Disclosure Statements
• Ohio BPC Op. 1989-021: Judge Paid for Writing Legal Articles
• Ohio BPC Op. 1989-028: Judge Teaching for Compensation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-92-018.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 92-18
Issued October 16, 1992

SYLLABUS: It is not improper under Section 102.03(D) or (E) of the Ohio Revised Code for an attorney who is a court administrator to accept an offer from a legal publisher to author a juvenile law handbook and to receive royalties, even though the legal publisher sells legal books to the court, provided that the court administrator does not use the authority or influence of his or her office to secure the offer of employment and that the court administrator receives permission from the court to delegate his or her authority and duties with regard to the court's purchase of legal books. The court administrator should not use court time, facilities, or resources to author the handbook.

It is improper under Section 2921.42 (A) (4) of the Ohio Revised Code for an attorney who is a court administrator to receive royalties for authoring a juvenile law handbook for a legal publisher that sells legal books to the court, unless the conditions within the safe harbor provision of Section 2921.42 (C) are met.

It is improper under Section 2921.42 (A) (1) for a court administrator to use the authority or influence of his or her office to authorize or secure the authorization of a contract for the sale or purchase of legal books from a legal publisher that employs and pays royalties to the court administrator.

It is not improper under Section 2921.43 (A) for a court administrator to receive royalties from a legal publisher for authoring a juvenile law handbook so long as the authoring of the handbook is not an official duty of the court administrator for which he or she receives public compensation.

OPINION: This opinion addresses whether it is proper for an attorney who is a court administrator for a juvenile division of a common pleas court to author a juvenile law handbook for a legal publisher and to receive royalties from the publisher's sale of the handbook, when the legal publisher occasionally sells legal books to the court. To answer the question raised, the Board must interpret Ohio Ethics Law and related statutes. See Ohio Rev. Code Ann. §§ 102.08 and 102.01(F) (2) (Baldwin 1987) (The Board of Commissioners on Grievances and Discipline has authority to render advisory opinions with regard to Ohio Ethics Law for judicial officers and employees and judicial candidates.).

The court administrator would enter into an agreement with a legal publisher to author a supplement to a juvenile law handbook. The legal publisher would sell the handbooks. The court administrator would receive royalties from the sales of the handbook. The court administrator would delegate all responsibility for the purchase of legal books to the legal director of the court. The legal director would be supervised in this task by one of the juvenile judges. According to the requester, there is a local court rule that allows attorneys who are court employees to perform work outside the court so long as there exists no conflict of interest.

Ohio Ethics Law is set forth in Chapter 102 and Sections 2921.42 and 2921.43 of the Ohio Revised Code. Relevant to this opinion are Sections 102.03 (D) and (E), Sections 2921.42 (A) (1) and (4), Section 2921.42 (C), and Section 2921.43 (A).

Sections 102.63 (D) and (E) are set forth below.

(D) No public official or employee shall use or authorize the use of the authority or influence of his [her] 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.

(E) No public official or employee shall solicit or accept 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.

For purposes of Chapter 102, a judicial employee is a "public official or employee." See Ohio Rev. Code Ann. §102.01 (B) and (C) (Baldwin 1987). Thus, a court administrator, as a judicial employee is subject to the restrictions of Sections 102.03(D) and (E).

To invoke the restrictions of Sections 102.03 (D) and (E) there must be 1) a thing of value and 2) the thing of value must be of such a character to manifest substantial and improper influence upon a public official or employee with respect to his or her duties. A thing of value includes money, goods, chattels, any interest in realty, a promise of future employment, and every other thing of value. See Ohio Rev. Code Ann. §§ 102.01 (G) (Baldwin 1987) and 1.03 (Baldwin 1990). If a thing of value is more than nominal or de minimus it is considered a substantial influence. See Ohio SupCt Bd of Comm'rs on Grievances and Discipline, Op 92-14 (1992) and Ohio Ethics Comm'n, Op. 89-014 (1989). If the source of a thing of value is a party that is interested in matters before, regulated by, or doing or seeking to do business with the public official's or employee's agency then it is considered an improper influence. See Ohio SupCt Bd of Comm'rs on Grievances and Discipline, Op. 92-14 (1992) and Ohio Ethics Comm'n, Op. 89-014 (1989).

Thus, an offer of employment to author a handbook and to receive royalties are things of value that are more than nominal or de minimus and thus substantial. See Ohio Ethics Comm'n Op. 85-014 (1985) ("Fees or payments received from a publisher for written articles are within the definition of 'anything of value' in Section 1.03 of the Revised Code.") A legal publisher that sells books to the court where the court administrator is employed would be an improper source of such things of value. Nevertheless, the influence would not be with respect to the court administrator's duties. The court administrator plans to delegate his or her authority and duties with regard to the purchase of legal books to the legal director who would be supervised by a judge. By delegating authority and duties with regard to the purchase of legal books to the legal director, the court administrator is in essence withdrawing from a matter that would pose a conflict of interest under Section 102.03. There is precedence for allowing such withdrawal to avoid conflict, so long as withdrawal does not interfere with the official's or employee's performance of his or her duties and the withdrawal is approved by appropriate officials. See e.g., Ohio Ethics Comm, Op. 90-002 (1990).

As to the present inquiry, the determination as to whether a court administrator could avoid conflict by delegating his or her duty or authority with respect to the court's purchase of legal books would be a determination for the court to make at its own discretion, by weighing whether or not such special consideration would interfere with the court's operations or cause hardship upon other employees. In making this decision it is paramount that a court administrator's duties as a public official should outweigh concern regarding his or her personal interests. The court administrator should not use court time, facilities, or resources to author the handbook. See e.g., Ohio Ethics Comm'n, Op. 85-014 (1985).

Therefore, it is this Board's opinion that it is not improper under Section 102.03 (D) or (E) of the Ohio Revised Code for an attorney who is a court administrator to accept an offer from a legal publisher to author a juvenile law handbook and to receive royalties, even though the legal publisher sells legal books to the court, provided that the court administrator does not use the authority or influence of his or her office to secure the offer of employment and that the court administrator receives permission from the court to delegate his or her authority and duties with regard to the court's purchase of legal books. The court administrator should not use court time, facilities, or resources to author the handbook.

However, also relevant to the issue raised are Sections 2921.42 (A) (1) and (4).

2921.42 (A) No public official shall knowingly do any of the following:

(1) Authorize, or employ the authority or influence of his office to secure authorization of any public contract in which he, a member of his family, or any of his business associates has an interest;

(4) Have an interest in the profits or benefits of a public contract entered into by or for the use of the political subdivision or governmental agency or instrumentality with which he is connected;

A judicial employee is a "public official" for purposes of Section 2921.42. See Ohio Rev. Code Ann. §§ 2921.01(A) (Baldwin 1992). As a judicial employee, a court administrator is subject to the restrictions of Sections 2921.42. The restrictions within Section 2921.42 apply when a public official has a prohibited interest in a public contract.

A public contract includes "[t]he purchase or acquisition, or a contract for the purchase or acquisition of property or services by or for the use of the state or any of its political subdivisions, or any agency or instrumentality of either." Ohio Rev. Code Ann. Section 2921.42 (E) (1) (Baldwin 1992). A prohibited interest may be either pecuniary or fiduciary, but must be definite and direct. See e.g., Ohio Ethics Commission Op. 89-006 (1989), and 81-008 (1981). A public official's outside employer is considered to be his or her business associate for purposes of Section 2921.42 (A) (1). See e.g., Ohio Ethics Comm'n, Op. 89-006 (1989).

Thus, a court's purchase of law books from a legal publisher is a public contract under 2921.42. The court administrator's interest in royalties from the legal publisher's sale of the handbooks is direct, definite, and pecuniary in nature and thus, would be a prohibited interest under Section 2921.42. The legal publisher's financial interest would also be a prohibited interest, since the legal publisher would be considered a business associate due to the employment relationship.

However, Section 2921.42 (C) offers a safe harbor from the prohibitions in Section 2921.42.

Section 2421.42 (C) This section [Section 2921.42] does not apply to a public contract in which a public servant, member of his family, or one of his business associates has an interest, when all of the following apply:

(1) The subject of the public contract is necessary supplies or services for the political subdivision or governmental agency or instrumentality involved;

(2) The supplies or services are unobtainable elsewhere for the same or lower cost, or are being furnished to the political subdivision or governmental agency or instrumentality as part of a continuing course of dealing established prior to the public servant's becoming associated with the political subdivision or governmental agency or instrumentality involved;

(3) The treatment accorded the political subdivision or governmental agency or instrumentality is either preferential to or the same as that accorded other customers or clients in similar transactions;

(4) The entire transaction is conducted at arm's length, with full knowledge by the political subdivision or governmental agency or instrumentality involved, of the interest of the public servant, member of his family, or business associate, and the public servant takes no part in the deliberations or decision of the political subdivision or governmental agency or instrumentality with respect to the public contract.

The safe harbor prevents unnecessary restriction in situations where there is minimal opportunity for conflict. As to the facts presented, there appears little opportunity for conflict. There would be practical limits as to how many books a court would purchase from a legal publisher. The financial interest of the court administrator and the legal publisher would be confined by the practical limits as to how many books a court could purchase. The court administrator could with permission from the court delegate his or her responsibilities as to the purchase of legal books. Further, certain books might only be available through a certain legal publisher. However, unless the safe harbor applies, there would be a violation of 2921.42 (A) (4) by virtue of the prohibited interests. There would be a violation of 2921.42(A) (1) if the authority of the court administrator was used to secure the contract.

Thus, it is the Board's opinion that it is improper under Section 2921.42 (A) (4) of the Ohio Revised Code for an attorney who is a court administrator to receive royalties for authoring a juvenile law handbook for a legal publisher that sells legal books to the court, unless the conditions within the safe harbor provision of Section 2921.42 (C) are met. It would be improper under Section 2921.42 (A) (1) for a court administrator to use the authority or influence of his or office to authorize or secure the authorization of a contract for the sale or purchase of legal books from a legal publisher that employs and pays royalties to the court administrator.

Finally, Section 2921.43 (A) must be considered.

2921.43 (A) No public servant shall knowingly solicit or accept and no person shall knowingly promise or give to a public servant either of the following:

(1) Any compensation, other than as allowed by divisions (G), (H), and (I) of section 102.03 of the Revised Code or other provisions of law, to perform his [her] official duties, to perform any other actor service in the public servant's capacity, for the general performance of the duties of the public servant's public office or public employment, or as a supplement to the public servant's public compensation;

(2) Additional or greater fees or costs than are allowed by law to perform his [her] official duties.

It is not improper under Section 2921.43(A) for a court administrator to receive royalties from a legal publisher for authoring a juvenile law handbook so long as the authoring of the handbook is not an official duty of the court administrator for which he or she receives public compensation.

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.