Can an Ohio judge appoint a lawyer who is employed by the judge's adult child, and must the judge then recuse?

Plain-English summary

The Board addressed whether a probate or juvenile judge could appoint an attorney to serve as estate fiduciary, as guardian or attorney for the mentally incompetent, or as court-appointed counsel for an indigent, when the attorney was employed by the judge's son as an associate. The question required interpretation under both the Code of Judicial Conduct and Ohio Ethics Law.

Under Canon 3B(4) and Canon 2B, the Board concluded the appointment was proper so long as it was based on merit, not friendship or other factors, defining favoritism as preference based on relationships rather than merit. On disqualification, the Board concluded that Canon 3C did not automatically require recusal when an appointed lawyer affiliated with a judge's relative appears, and that, following Opinion 91-8, whether impartiality might reasonably be questioned or the relative's interest could be substantially affected by the outcome must be decided case by case.

Under Ohio Ethics Law, the Board treated the appointment as a public contract and the judge's son as a member of the judge's family, so the controlling question was whether the son had a prohibited interest. The Board concluded that if the son would receive a percentage of the money the court paid the appointed attorney, the son would have a prohibited pecuniary interest under R.C. 2921.42(A)(1); if the financial arrangement did not entitle the son to such a percentage, there would be no prohibited interest and no violation.

Currency note

The Ohio Board flags this opinion as a "Former CJC Opinion" that interprets the former Ohio Code of Judicial Conduct, and as "Not current" in light of subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct effective May 1, 1997.

This opinion issued in 1993. The former Ohio Code of Judicial Conduct was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009, and the former Code of Professional Responsibility by the Ohio Rules of Professional Conduct 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 Treat this page as historical context, not current guidance.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 Code of Judicial Conduct and Ohio Ethics Law before relying on any specific provision mentioned here.

Common questions

Q: Could a judge appoint a lawyer employed by the judge's son?

A: Yes. Under Canon 3B(4) and Canon 2B, the Board concluded it was proper so long as the appointment was based on merit, not friendship or other factors.

Q: Did the judge have to disqualify when that lawyer appeared?

A: Not automatically. The Board concluded Canon 3C did not require recusal merely because the appointed lawyer was affiliated with the judge's relative; following Opinion 91-8, whether impartiality might reasonably be questioned or the son's interest could be substantially affected had to be determined case by case.

Q: Did Ohio Ethics Law bar the appointment?

A: The Board concluded it was proper under R.C. 2921.42(A)(1) so long as the judge's son was not entitled to a percentage of the money the court paid the appointed attorney; otherwise the son would have a prohibited pecuniary interest in the public contract.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct, Canon 2B (avoiding family and other influences and lending the prestige of office), Canon 3B(4) (appointments based on merit, eliminating nepotism and favoritism), and Canon 3C (disqualification), together with Ohio Ethics Law, R.C. 2921.42(A)(1), which prohibits a public official from using the authority of office to secure a public contract in which a family member has an interest.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 2B, Canon 3B(4), Canon 3C(1)(d)

Statutes:

• Ohio Rev. Code Ann. Sections 2921.42(A)(1), 2921.42(E)(1), 2921.01(A) (Baldwin 1992)

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 91-8 (1991): disqualification and a lawyer affiliated with a judge's spouse
• Ohio Ethics Commission Ops. 80-001 (1980), 89-015 (1989), 88-007 (1988), 83-002 (1983), 81-008 (1981), 81-003 (1981), 78-005 (1978)

See also

• Ohio BPC Op. 1989-010: Judge Disqualification, Third-Degree Relative
• Ohio BPC Op. 1991-008: Judge Disqualification, Spouse's Law Firm and Tenant Lawyer
• Ohio BPC Op. 1989-001: Court Nepotism, Judge's Spouse as Employee
• Ohio BPC Op. 1987-022: Part-Time Judge, Law Partners and Relatives

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-93-002.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 93-2
Issued February 12, 1993
[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: It is proper under Canon 3B (4) and Canon 2B of the Code of Judicial Conduct for a
probate/juvenile judge to appoint an attorney to serve as fiduciary of an estate, as guardian and or
attorney for the mentally incompetent, or as court appointed counsel for an indigent in juvenile
court when the attorney is employed by the judge's son as an associate in a law practice, so long as
the appointment is based on merit not friendship or other factors. Canon 3C of the Code of Judicial
Conduct would not automatically require disqualification of a judge from a proceeding in which the
lawyer appointed by the judge is employed by the judge's son as an associate in a law practice.

It is proper under Section 2921.42 (A) (1) of the Ohio Revised Code for a probate/juvenile judge to
appoint an attorney to serve as fiduciary of an estate, as guardian and or attorney for the mentally
incompetent, or as court appointed counsel for an indigent in juvenile court when the attorney is
employed by the judge's son as an associate in a law practice, so long as the judge's son is not
entitled to receive a percentage of the money paid by the court to the appointed attorney.

OPINION: This opinion addresses whether it is proper for a probate/juvenile judge to appoint an
attorney to serve as fiduciary of an estate, as guardian and or attorney for the mentally incompetent,
or as court appointed counsel for an indigent in juvenile court, when the attorney is employed by
the judge's son as an associate in a law practice. The question presented requires interpretation
under two authorities--the Code of Judicial Conduct and Ohio Ethics Law and related statutes.

Code of Judicial Conduct

Canon 3B (4) and the commentary thereto, and Canon 2B of the Code of Judicial Conduct are set
forth below.

Canon 3B (4) A judge should not make unnecessary appointments. He 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.

Commentary

Appointees of the judge include officials such as referees,
commissioners, special masters, receivers, guardians, appraisers and
personnel such as clerks secretaries, bailiffs and all other court
employees and appointees. Consent by the parties to an appointment
or an award of compensation does not relieve the judge of the
obligation prescribed by this subsection.

Canon 2B A judge should not allow his [her] family, social, or other relationships
to influence his [her] judicial conduct or judgment. He [she] should not lend the
prestige of his [her] office to advance the private interests of others; nor should he
[she] convey or permit others to convey the impression that they are in a special
position to influence him [her]. He [she] should not testify voluntarily as a character
witness.

Favoritism is not defined within the Code of Judicial Conduct, but is generally defined as
“[i]nvidious preference and selection based on friendship and factors other than merit." Black's
Law Dictionary 548 (5th ed. 1979). To eliminate favoritism, an appointment should be based on
merit not friendship or other factors. It is this Board's opinion that it is proper under Canon 3B (4)
or Canon 2B of the Code of Judicial Conduct for a probate/juvenile judge to appoint an attorney to
serve as fiduciary of an estate, as guardian and or attorney for the mentally incompetent, or, as
court appointed counsel for an indigent in juvenile court when the attorney is employed by the
judge's son as an associate in a law practice, so long as the appointment is based on merit not
friendship or other factors.

However, a related issue is whether Canon 3C of the Code of Judicial Conduct would automatically
require disqualification of a judge from a proceeding in which a lawyer appointed by the judge is
employed by the judge's son as an associate in a law practice. Canon 3C does not require recusal
when a lawyer appointed by a judge appears in his or her appointed capacity before the judge. Nor
does the Code automatically require disqualification where the lawyer in the proceeding is
affiliated in a law practice with a family member of the judge. See Commentary to Canon 3C (l)
(d) which is set forth below.

Commentary

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 3C(l), 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(l) (d) (iii) may require his
disqualification.

The Board considered this Commentary in Opinion 91-8 (1991) and concluded 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 the 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."

As to the disqualification issue raised in this opinion, the Board’s similarly advises that Canon 3C
of the Code of Judicial Conduct would not automatically require disqualification of a judge from a
proceeding in which the lawyer appointed by the judge is employed by the judge's son as an
associate in a law practice. However, whether or not an interest of the judge or the judge's son
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.

Ohio Ethics Law

A judge is a "public official" subject to the prohibitions of Section 2921.42(A) of the Ohio Revised
Code (Baldwin 1992). See Ohio Rev. Code Ann 2921.01(A) (Baldwin 1992). The prohibition
within Section 2921.42(A) (1) is pertinent to this opinion.

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

(1) Authorize, 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;

(2) through (5) (omitted).

To determine whether this prohibition applies to the facts presented, the Board must construe the
meaning of the words "public contract," "member of his [her] family" and "interest." In doing so,
the Board relies on statutory definitions and on precedent established by the Ohio Ethics
Commission.

For purposes of Section 2921.42 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. §
2921.42 (E) (1) (Baldwin 1992). An employment relationship is a "public contract" under Section
2921.42 (A) (1) since the services of an employee are being purchased or acquired. See e.g., Ohio
Ethics Comm’n, Op. 89-015 (1989) (An employment relationship between a political subdivision
and an employee is a public contract since the political subdivision is purchasing or acquiring
services); Ohio Ethics Comm’n, Op. 88-007 (1988) (A contract between a board of education and a
law firm for the law firm's services falls within the definition of a public contract under Section
2921.42); Ohio Ethics Comm’n, Op. 83-002 (1983) (A contract with an attorney to provide legal
services as law director to the city is a public contract for purposes of Section 2921.42).

A court must exercise its power of appointment to acquire services in order to carry out its duties.
For example, a juvenile court is required by rule to provide the services of a guardian for the
mentally incompetent (Juv.R. 4(B)], to provide counsel for the indigent [(Juv.R. 4(A)], and is
required to appoint and oversee the fiduciary of an estate [Ohio Rev. Code Ann. §§ 2109.02 and
2101.24 (Baldwin 1987)]. A court may allow an attorney who is an appointed guardian for the
mentally incompetent to also serve as attorney for a ward [Juv.R. 4(C)]. A court has authority to
fix compensation for the performance of duties as guardian for the mentally incompetent and
appointed counsel for the indigent [Juv.R. 4(F)]. A court is required to oversee the compensation
of a fiduciary of an estate (C.P.Sup.R. 40, 41). For these reasons, this Board concludes that the
appointment of an attorney to serve as fiduciary of an estate, as guardian and or attorney for the
mentally incompetent, or as court appointed counsel for an indigent in juvenile court is a "public
contract" as that term is used in section 2921.42 since the court is acquiring services pursuant to its
duties.

For purposes of Section 2921.42, the Ohio Ethics Commission has concluded that "the term ‘a
member of his family' includes, but is not limited to: 1) grandparents; 2) parents; 3) spouse; 4)
children, whether dependent or not; 5) grandchildren; 6) brothers and sisters; or 7) any person
related by blood or marriage and residing in the same household." Ohio Ethics

Commission 80-001 (1980). This Board agrees. Accordingly, a son or daughter of a judge,
whether dependent or not, is a "member" of the judge's family for purposes of Section 2921.42.

Having concluded that such proposed appointments by a judge create a "public contract," and that a
judge's son is a "member of his [the judge's] family," a final determination must be made as to
whether there would be a prohibited "interest." The Ohio Ethics Commission has defined the term
"interest" as a definite, direct interest which may be either pecuniary or fiduciary. See e.g., Op. 81-
008 (1981), Op. 81-003 (1981), 78-005 (1978). Using this definition, the Board must determine
whether a judge's son would have an "interest" in a contract between a court and an appointed
attorney when the attorney is employed by the judge's son as an associate in a law practice.

Financial compensation is a pecuniary interest. The appointed attorney would receive
compensation for serving as fiduciary of an estate, as guardian and or attorney for the mentally
incompetent, or as court appointed counsel for an indigent in juvenile court. If the judge's son
would receive a distributive share of the firm's earnings and thus would receive a percentage of the
money paid by the court to the appointed attorney, the judge's son would have a prohibited
pecuniary interest in the public contract between the court and the appointed attorney. However, if
the financial arrangement between the appointed attorney and the judge's son did not entitle the
judge's son to a percentage of the money paid by the court to the appointed attorney for his or her
services, there would not be a prohibited interest and thus be no violation of Section 2921.42 (A)
(1).

In conclusion, this Board advises that under Section 2921.42 (A) (1) of the Ohio Revised Code it is
proper for a probate/juvenile judge to appoint an attorney to serve as fiduciary of an estate, as
guardian and or attorney for the mentally incompetent, or as court appointed counsel for an indigent
in juvenile court when the attorney is employed by the judge’s son as an associate in a law practice,
so long as the judge's son is not entitled to receive a percentage of the money paid by the court to
the appointed attorney.

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.