Can a part-time county court judge, or the judge's firm, practice law in the county court where the judge sits by assignment?

Plain-English summary

The Board answered two questions about part-time county court judges, who under Canon 5F may practice law subject to the Compliance section's restrictions on part-time judges. The question was related to but distinct from Opinion 87-029, which addressed a county court divided into areas of separate jurisdiction.

On the first question, the Board concluded that a part-time county court judge may not practice law in the county court where the judge sits by assignment until the assignment terminates, consistent with the Compliance section's restriction on a part-time judge practicing in the court on which the judge serves.

On the second question, the Board concluded that the judge's partners and associates likewise may not practice law in that county court during the assignment, with one exception: where the county court is divided into areas of separate jurisdiction under R.C. 1907.15, the partners or associates may practice in the areas of separate jurisdiction in which the judge is not assigned.

Currency note

The Ohio Board flags this opinion as a "Former CJC Opinion" interpreting the former Ohio Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct, which superseded the former Ohio Code of Judicial Conduct effective March 1, 2009.

This opinion issued in 1994. 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 Treat this page as historical context, not current guidance.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 provision mentioned here.

Common questions

Q: Could a part-time county court judge practice law in the court where the judge sits by assignment?

A: No. The Board concluded the judge could not practice law in that county court until the assignment terminated, under Canon 5F and the Compliance section's restrictions on part-time judges.

Q: Could the judge's partners or associates practice in that court?

A: Generally no, during the assignment. The Board allowed one exception: where the county court is divided into areas of separate jurisdiction under R.C. 1907.15, partners or associates may practice in the areas where the judge is not assigned.

Q: How did this relate to Opinion 87-029?

A: The Board treated the question as related to but distinct from Opinion 87-029, which had addressed county courts divided into geographic areas of separate jurisdiction and precluded the judges from practicing in any district of that county court.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct, Canon 5F (a part-time judge may practice law subject to the Compliance section) and the Compliance section's definition and restrictions for a part-time judge, against the statutory structure of county courts in R.C. 1907.11 (part-time county court judges) and R.C. 1907.15 (areas of separate jurisdiction).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 5F and the Compliance section (Part-Time Judge)

Statutes:

• Ohio Rev. Code Ann. Sections 1907.11, 1907.15 (Baldwin 1993)

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 87-029 (1987): county court divided into areas of separate jurisdiction

See also

• Ohio BPC Op. 1987-029: County Court Judges Practicing Law
• Ohio BPC Op. 1991-002: County Court Judge, Part-Time Criminal Defense
• 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-94-002.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 94-2
Issued February 18, 1994
[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.]

[Modified by Op. 2004-5 issued April 15, 2005]

[Not current-subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997
and to Compliance Section; to Rules of Superintendence, eff. Jul. 1, 1997.]

SYLLABUS: A part-time county court judge may not practice law in the county court where the
judge sits by assignment until the termination of the assignment.

The partners and associates of a part-time county court judge may not practice law in the county
court where the judge sits by assignment until the termination of the assignment. The exception is
that if the county court is divided into areas of separate jurisdiction under Section 1907.15 of the
Ohio Revised Code, the partners or associates may practice in the areas of separate jurisdiction in
which the judge is not assigned.

OPINION: Two questions are presented regarding the practice of law by part-time county court
judges, their partners, and associates.

1. May a part-time county court judge practice law in the county court where the
   judge sits by assignment?

2. May the partners or associates of a part-time county court judge practice law in
   the county court where the judge sits by assignment?

Question 1

The Board is asked to address the propriety of a county court judge practicing law in a court where
the judge sits by assignment. This issue is related to, yet distinct from, the issue addressed in
Opinion 87-029 (1987). In Opinion 87-029, the Board addressed whether a county court judge may
practice law within his or her county court if the county court is divided into areas of separate
jurisdiction under Section 1907.15 of the Ohio Revised Code (Baldwin 1993). The Board advised
that “[i]f the county court is divided into geographic areas of separate jurisdiction, the county court
judges are precluded from practicing law in any of the districts of that county court." Id.

In Ohio, county court judges are part-time judges. See Ohio Rev. Code Ann. § 1907.11 (Baldwin
1993). County court judges may practice law. Under Canon 5F of the Code of Judicial Conduct,
part-time judges "may practice law subject to the restrictions in the Compliance section of this
Code." The restrictions within the Compliance section are set forth below.

A. Part-Time Judge. A part-time judge is a judge who serves on a continuing or
periodic basis, but is permitted by law to devote time to some other profession or
occupation and whose compensation for that reason is less than that of a full-time
judge. A part-time judge:

(1) is not required to comply with Canon 5C (2), D, E, F, and G, and
Canon 6C, except that a part-time judge must file the annual
disclosure statement required by R.C. 102.02;

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

Further, under Section 1907.16 (B) of the Ohio Revised Code (Baldwin 1993), “[a] judge of a
county court shall be disqualified from the practice of law only as to matters pending or originating
in that county court during his term of office.”

County-court judges may sit by assignment in any municipal or county court under Rule 13 (A) of
the Rules of Superintendence for Municipal Courts and County Courts. The rule is set forth below.

Rule 13 (A) Assignment. Any active municipal or county court judge, or any full-
time municipal court judge who voluntarily has retired or who is retired by virtue of
Article IV, Section 6(C) of the Ohio Constitution and who is not engaged in the
practice of law, may consent to be assigned by the Chief Justice or acting Chief
Justice of the Supreme Court to serve as a judge on any municipal or county court.

The assignment of judges provides a method to redistribute judicial resources to courtrooms where
needed. Yet, judicial economy must be compatible with ethical considerations. Under Canon 2 of
the Code of Judicial Conduct, the broad mandate is that "A Judge Should Avoid Impropriety and
the Appearance of Impropriety in All His [Her] Activities," and the requirement in Canon 2 (A), set
forth below, for conduct that promotes public confidence.

Canon 2(A) A judge should respect and comply with the law and should conduct
himself [herself] at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary.

The restrictions on the practice of law by part-time judges within the Compliance section further
the purposes of Canon 2 by preventing the appearance of impropriety that would exist when an
individual serves as a judge of a court one day and serves as a lawyer trying a case in that court the
next day.

To answer the question raised, the Board must determine whether the court on which a judge sits by
assignment constitutes a court an which a judge serves, thus triggering the prohibition within the
Compliance section that a part-time judge should not practice law in the court on which he or she
serves. When a judge sits by assignment, the judge has full judicial authority with regard to each
assignment. The judge serves the court until the termination of the assignment. See Article IV
Section 5(A) (3) of the Ohio Constitution stating that a visiting judge "shall serve in the assigned
capacity until the termination of the assignment."

It is the Board’s view that when a judge sits by assignment, the judge is serving the court to which
he or she is assigned, thus triggering the prohibition with the Compliance section. In conclusion,
this Board advises that a part-time county court judge may not practice law in the county court
where the judge sits by assignment until the termination of the assignment.

Question 2

The compliance section of the Code of Judicial Conduct places no express restrictions on the
practice of law by the partners or associates of a part-time judge. Nevertheless, such restrictions
have been implied. In Opinion 87-022, the Board cited Compliance Section A (2) in advising that
"[l]aw partners or associates of a part-time judge are precluded from practicing law in the court on
which the part-time judge serves." However, in Opinion 87-029 the Board declined to advise on
whether members of a county court judge's firm may appear before other county court judges when
the county court is divided into geographic areas of separate jurisdiction.

The Board takes this opportunity to clarify these issues. First, partners or associates of a part-time
county court judge may not practice law before a judge who is their partner or associate. This
restriction is in keeping with the requirement of Disciplinary Rule 9-101 (C) that "[a] lawyer shall
not state or imply that he [she] is able to influence improperly or upon irrelevant grounds any
tribunal, legislative body, or public official." When a partner or an associate of a part-time judge
appears before the judge there is an implication of improper influence.

Second, when a county court is divided into areas of separate jurisdiction, the Board sees no
impropriety in the partners or associates of a county court judge appearing before other judges in
the separate areas of jurisdiction. Under such circumstances, the Board fails to find an implication
of improper influence.

Third, in county courts not divided into areas of separate jurisdiction, it would be improper for the
partners or associates of a part-time judge to appear before any judge of that court. The shared
jurisdiction creates an appearance of improper influence.

As to the issue presented, this Board advises that partners and associates of a part-time county court
judge may not practice law in a county court where the judge sits by assignment until the
termination of the assignment. The exception is that if the county court is divided into areas of
separate jurisdiction under Section 1907.15 of the Ohio Revised Code, the partners or associates
may practice in the areas of separate jurisdiction in which the judge is not assigned.

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.