Can a lawyer state in an affidavit to disqualify a judge that the lawyer has filed a disciplinary grievance against that judge?

Plain-English summary

The Board addressed whether an attorney who is a party before a judge, and who has filed a grievance against that judge, may state in an affidavit of disqualification that the grievance was filed. It declined to opine on the requester's asserted constitutional right to an impartial adjudicator and confined itself to the disciplinary rule.

The Board explained that Gov.Bar R. V Section 11(E) makes proceedings and documents relating to the investigation of a grievance private, becoming public only when a grievance is certified as a formal complaint upon two probable-cause findings. The rule balances the privacy of a person under investigation for what may be an unsupported grievance against public access once probable cause is found. The Board noted that the Supreme Court has held a judge is not disqualified merely because a party or counsel filed a grievance against the judge (Kilpatrick, Lorig, Walton), and that the court has admonished affiants about the privacy rule.

The Board concluded that because uncertified grievances are intended to be private, an attorney should not reveal that a grievance has been filed until it is certified as a formal complaint. It distinguished revealing the fact of a filing from revealing the facts underlying the grievance, which an attorney may include in the affidavit.

Currency note

The Ohio Board flags this opinion as "Withdrawn" by the Board on February 7, 2025 in Advisory Opinion 2025-01.

This opinion issued in 1998, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007) and before the Board's withdrawal. The cited Gov.Bar R. V privacy provisions have since been renumbered and amended. Treat this page as historical context, not current guidance. Verify against the current Supreme Court Rules for the Government of the Bar of Ohio before relying on any specific rule or section mentioned here.

Common questions

Q: Could a lawyer say in a disqualification affidavit that they filed a grievance against the judge?

A: No, if the grievance was not yet certified. The opinion concluded that Gov.Bar R. V Section 11(E) keeps uncertified grievances private, so stating that a grievance was filed was improper.

Q: Could the lawyer still describe what the judge allegedly did?

A: Yes. The opinion concluded that revealing the facts underlying a grievance is different from revealing that a grievance was filed, and the underlying facts could be included.

Q: Does filing a grievance disqualify the judge?

A: Not by itself. The opinion noted the Supreme Court has held that a judge is not disqualified solely because a party or counsel filed a grievance against the judge.

Background and rules framework

The opinion interprets Gov.Bar R. V Section 11(E) of the Supreme Court Rules for the Government of the Bar of Ohio, which governs the privacy of disciplinary proceedings and documents until a grievance is certified as a formal complaint, read against the statutes and case law on affidavits of disqualification.

Citations and references

Rules of Professional Conduct:

• Gov.Bar R. V Section 11(E) (former numbering)

Statutes:

• Ohio Const. art. IV, § 5(C); Ohio Rev. Code §§ 2501.13, 2701.03

Cases:

• In re Disqualification of Kilpatrick, 47 Ohio St. 3d 605 (1989), grievance does not disqualify judge
• In re Disqualification of Lorig, S.C. No. 92-AP-064 (1992), privacy admonition
• In re Disqualification of Walton, S.C. No. 94-AP-201 (1995)

See also

• Ohio BPC Op. 1996-001: Ex Parte Contact With Former Corporate Employees
• Ohio BPC Op. 1997-003: Surreptitious Recording by Attorneys
• Ohio BPC Op. 1995-005: Judge Writing Letters of Recommendation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-98-002.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 98-2
                              Issued April 3, 1998
                         Withdrawn by Adv. Op. 2025-01

SYLLABUS: It is improper under the privacy provisions of Governing Bar Rule
V§11(E) for an attorney to state in an affidavit of disqualification of a judge that the
attorney has filed a disciplinary grievance against the judge when the grievance has not
been certified as a formal complaint. The rule protects the privacy of disciplinary matters
under investigation until there has been a finding of probable cause and certification of
the complaint by the Board of Commissioners on Grievances and Discipline. An attorney
is not prohibited from including in an affidavit of disqualification the facts underlying a
grievance. An attorney may reveal the facts underlying a grievance for that is different
from revealing that a grievance has been filed.

OPINION: This opinion addresses whether it is proper under the privacy provisions of
Governing Bar Rule V for an attorney to reveal in an affidavit of disqualification of a
judge that a grievance has been filed by the attorney against the judge Under the
proposed facts, an attorney is a party in a proceeding before a judge. The attorney files a
grievance against a judge. The attorney also wants to file an affidavit of disqualification
of the judge. The attorney claims that revealing the grievance in the affidavit is necessary
“to protect his or her right under the United States Constitution to an impartial
adjudicator.” The Board has no authority to opine on the requester’s concerns regarding
constitutional rights. The Board will advise upon the application of the disciplinary rule.

   Does it violate the privacy provisions Governing Bar Rule V § 11(E) for
   an attorney to reveal in an affidavit of disqualification of a judge that the
   attorney has filed a disciplinary grievance against the judge?

Privacy and confidentiality of disciplinary procedures are governed under Rule V § 11(E)
of the Supreme Court Rules for the Government of the Bar of Ohio. The rule sets forth
what is private and what is public in disciplinary matters. All proceedings and
documents relating to an investigation of a grievance are private. All certified formal
complaints and all subsequent proceedings are public, with the exception that
deliberations by the Board are confidential and its recommendations are private until filed
with the Supreme Court.

The demarcation between private and public occurs when a grievance is certified as a
formal complaint by the Board of Commissioners on Grievances and Discipline. A
grievance is certified as a formal complaint upon two probable cause findings of
misconduct. The first finding is by an investigating body under Gov. Bar R. V § 4(C).

The second finding is by a probable cause panel of the Board under Gov. Bar R. V §
6(A)and (D).

The rule balances competing concerns. It protects an individual’s privacy needs during
investigation of what may be an unsupported grievance, while promoting free flow of
information to the public on disciplinary matters in which there has been a determination
of probable cause of misconduct. The rule is set forth below.

   Gov. Bar R. V § 11(E) Proceedings Private; Public.

          (1) All proceedings and documents relating to review and
              investigation of grievances made under these rules shall be
              private except as follows:

                  (a) Where the respondent requests in writing that they be
                      public;

                  (b) Where the respondent voluntarily waives privacy of the
                      proceedings;

                  (c) Where the proceedings reveal reasonable cause to
                      believe that respondent is or may be addicted to alcohol
                      or other chemicals, or is abusing the use of alcohol or
                      other chemicals, in which event the information giving
                      rise to this belief shall be communicated to a committee
                      or subcommittee of a bar association, or to an executive
                      officer or employee of a non-profit corporation
                      established by a bar association, designed to assist
                      lawyers with substance abuse problems.

          (2)(a) From the time a complaint has been certified to the Secretary
          of the Board by a probable cause panel, the complaint and all
          subsequent proceedings in connection with the complaint shall be
          public; except that deliberations by the panel and deliberations by
          the Board shall be confidential and the recommendations of the
          Board shall be private until filed with the Supreme Court. The
          Board-approved ADR process shall be confidential.               Any
          knowledge obtained by a mediator or facilitator shall be privileged
          for all purposes under DR 1-103, provided the knowledge was
          obtained while the mediator or facilitator was acting as a mediator
          or facilitator.

          (b) Proceedings by a Certified Grievance Committee and
              Disciplinary Counsel shall be private until certified by a
              probable cause panel; except that deliberations by a Certified


              Grievance Committee, Disciplinary Counsel, panel, or Board
              shall be confidential.

           (c) As used in Section 11 of this rule, the terms “private” and
               “confidential” shall have the following meanings:

                  (i) “Private” acknowledges the right of the respondent to
                      the right of privacy as to the proceedings relative to an
                      uncertified complaint, which may be waived by the
                      respondent as provided in Section 11(E)(1) of this rule.

                  (ii) “Confidential” acknowledges the oath of office of
                       Section 11(E)(3) of this rule, acknowledges the
                       necessity of confidentiality in the deliberative stage of
                       the proceedings of the Certified Grievance Committee,
                       Disciplinary Counsel, panel, and Board, and applies to
                       members and employees of the Certified Grievance
                       Committee, Disciplinary Counsel, panel, and Board,
                       such that deliberations cannot be disclosed or waived
                       by anyone for any reason.

           (3) and (4) [omitted]

Affidavits of disqualification of judges of the courts of appeals or courts of common
pleas are filed with the Supreme Court of Ohio. See Ohio Const IV § 5(C), Ohio Rev.
Code Ann. §§ 2501.13, 2701.03 (Baldwin Supp. 1998). Some affidavits have included
statements by attorneys averring that a grievance has been filed against a judge. The
court has held that a judge is not disqualified solely because a party or counsel in a
pending case has filed a grievance against the judge. See In re Disqualification of
Kilpatrick, 47 Ohio St. 3d 605 (1989); In re Disqualification of Lorig: State of Ohio v.
Hurn (June 15, 1992), S.C. No. 92-AP-064, unreported; In re Disqualification of Walton:
Leonard v. Scioto/Lawrence Area Manpower Drug Task Force (Jan. 10, 1995), S.C. No.
94-AP-201, unreported.

In dismissing the affidavit in Kilpatrick the court commented briefly on confidentiality.

   Complaints filed with the Disciplinary Counsel are, by rule, confidential at
   the preliminary stage, and this court has no independent knowledge of
   whether the claim that such a complaint has been filed is true.

   A judge is presumed to be fair and impartial, and there is no evidence to
   suggest that the filing of such a complaint, even if true, has affected or
   would affect the conduct of this judge.
   This court has previously held that a judge is not automatically
   disqualified solely because a litigant in a pending case before the judge
   has named that judge as a defendant in a separate action. In re


   Disqualification of Hunter (1988), 36 Ohio St. 3d 607, 522 N.E. 2d 461.
   It follows that a judge is not automatically disqualified solely because a
   party in a case pending before him or her has filed a complaint against the
   judge with Disciplinary Counsel or a similar body. To hold otherwise
   would invite the filing of misconduct complaints solely to obtain a judge’s
   disqualification, and “the orderly administration of judicial proceedings
   would be severely hampered and thwarted * * *.” Smith v. Smith (App.
   1977), 115 Ariz. 299, 303, 564 P. 2d 1266, 1270.

In dismissing the affidavit in Lorig, the court admonished the affiant regarding the rule of
privacy: “Affiant is reminded that Section 43 of Rule V of the Rules for the Government
of the Bar of Ohio [the predecessor of Gov. Bar R. V § 11(E)] requires that disciplinary
complaints remain private until and unless formal proceedings begin before the Board of
Commissioners on Grievances and Discipline.” In both Lorig and Walton the court
quoted from the Kilpatrick case that “[b]ecause complaints against judges and lawyers
are, by rule, confidential, this Court has no independent knowledge of whether a
complaint has been filed.”

The above cases did not rule on whether the privacy rule is violated if an attorney states
in an affidavit of prejudice that a grievance has been filed against the judge.
Nevertheless, those cases and the rule itself call for privacy of documents and
proceedings related to an investigation of a grievance. Attorneys are bound by the rules.
Grievances that are not certified as a formal complaint are intended to be private under
Ohio’s rules governing disciplinary procedure. An attorney should not reveal that a
grievance has been filed until the grievance has been certified as a formal complaint. An
attorney may reveal the facts underlying a grievance for that is different from revealing
that a grievance has been filed.

In conclusion, the Board advises that it is improper under the privacy provisions of
Governing Bar Rule V § 11(E) for an attorney to state in an affidavit of disqualification
of a judge that the attorney has filed a disciplinary grievance against the judge when the
grievance has not been certified as a formal complaint. The rule protects the privacy of
disciplinary matters under investigation until there has been a finding of probable cause
and certification of the complaint by the Board of Commissioners on Grievances and
Discipline. An attorney is not prohibited from including in an affidavit of
disqualification the facts underlying a grievance. An attorney may reveal the facts
underlying a grievance for that is different from revealing that a grievance has been filed.

Advisory Opinions of the Board of Commissioners on Grievance 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.