Can a full-time Ohio judge or magistrate run a side business, such as delivering newspapers or driving a delivery vehicle?

Plain-English summary

The Board explained that the Ohio Code of Judicial Conduct, which applies to magistrates as well as judges, nearly bars active outside business activity through Canon 2(C). Canon 2(C)(1) prohibited dealings that exploit the judicial position or involve frequent transactions or continuing business relationships with lawyers or others likely to come before the court, and Canon 2(C)(4) required a judge to manage investments to minimize disqualification.

The Board identified three narrow exceptions in which a full-time judge or magistrate could participate in business: holding and managing investments of the judge and the judge's family, including real estate (Canon 2(C)(2)); participating in a business closely held by the judge or the judge's family (Canon 2(C)(3)(a)); and participating in a business entity primarily engaged in investing the family's financial resources (Canon 2(C)(3)(b)). The Board noted a separate allowance for part-time judges, part-time magistrates, and retired judges eligible for recall, who are not required to comply with Canon 2(C)(3).

Applying this to the examples raised (delivering newspapers or driving a delivery vehicle), the Board concluded the propriety turned on the facts: first, whether the business was closely held by the judge or the judge's family, and if so, a secondary inquiry into whether the activity would exploit the position, involve frequent dealings with likely litigants, or require frequent disqualification. The Board added that judges and magistrates remained subject to Ohio Ethics Law, citing Ohio Ethics Commission Opinion 96-004, but did not analyze that law further given the narrow permission under the Code.

Currency note

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opinion as a "Former CJC Opinion," meaning it provides advice under the former Ohio Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009.

This opinion issued in 1998, before that revision. The Canon 2(C) numbering and the business-activity exceptions described here have since been revised. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule or exception mentioned here.

Common questions

Q: Could a full-time Ohio judge or magistrate run an outside business?

A: Only within narrow limits. The opinion concluded that Canon 2(C) confined a full-time judge or magistrate to managing family investments and real estate, participating in a closely held family business, or participating in a family investment entity.

Q: Did the Code of Judicial Conduct apply to magistrates?

A: Yes. The opinion stated the Code applies to anyone performing judicial functions, including magistrates, so the same business-activity limits applied.

Q: Could a judge deliver newspapers or drive a delivery vehicle as a side job?

A: The opinion made this fact-specific: the activity had to fit the closely held family-business exception, and even then could not exploit the judicial position, involve frequent dealings with likely litigants, or require frequent disqualification.

Q: Were part-time judges and magistrates treated the same?

A: No. The opinion noted that part-time judges, part-time magistrates, and retired judges eligible for recall were not required to comply with Canon 2(C)(3), subject to the Canon 2(C)(1) restrictions.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 2(C)(1) through (4) (financial and business activity), including the Canon 2(C)(2) and 2(C)(3) exceptions added effective May 1, 1997, and references Ohio Ethics Law at R.C. 102.03(D) and (E) through Ohio Ethics Commission Opinion 96-004.

Citations and references

Rules of Professional Conduct:

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

Statutes:

• R.C. 102.03(D), (E)

Cases:

• Steinberg v. State Comm'n on Judicial Conduct, 51 N.Y.2d 74 (1980), private loan business
• In re Troy, 364 Mass. 15 (1973), neglect of duties for real-estate business
• In re Foster, 271 Md. 449 (1974), developing and rezoning owned real estate
• In re Dalessandro, 483 Pa. 431 (1979), permissible family automobile dealership

Other opinions cited:

• Ohio Ethics Commission Op. 96-004 (1996): outside employment and business activity by public officials
• Ohio Bd. of Comm'rs on Grievances & Discipline Ops. 88-7 (1988), 95-10 (1995), 91-10 (1991): prior judicial-business rulings

See also

• Ohio BPC Op. 1998-010: Gifts to Judges
• Ohio BPC Op. 1998-008: Judge on Party Executive Committee or Board of Elections

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-98-012.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 98-12
                                Issued December 4, 1998

[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.]

SYLLABUS: Extra-judicial business activity by a full-time judge or full-time magistrate
is limited by Canon 2(C) of the Ohio Code of Judicial Conduct. A full-time judge’s or a
full-time magistrate’s involvement in business activities is restricted to (1) holding and
managing investments of the judge and members of the judge’s family, including real
estate; (2) participation in a business closely held by the judge or member of the judge’s
family; and (3) participation in a business entity primarily engaged in investment of the
financial resources of the judge or member of the judge’s family. Participation in such
business activities must not (1) exploit the judicial office through misuse of the position
or through time consuming activities that detract from judicial duties; (2) involve
frequent transactions or continuing business relationships with lawyers or other persons
likely to come before the court on which the judge or magistrate serves; or (3) involve
business interests that would require frequent disqualification of the judge or magistrate.
Extra-judicial business activity by a full-time judge or full-time magistrate is also limited
by Ohio Ethics Law as noted within this opinion.

OPINION: This opinion addresses whether a full-time judge or a full-time magistrate
may engage in extra-judicial business activities. The question is set forth as follows:

   Is it proper for a full-time judge or a full-time magistrate to engage in
   extra-judicial business activities?

The Ohio Code of Judicial Conduct applies to “[a]nyone, whether or not a lawyer, who is
an officer of a judicial system performing judicial functions, including an officer such as
a referee in bankruptcy, special master, court commissioner or magistrate is a judge for
the purpose of this Code.” See Compliance section of the Code of Judicial Conduct.
Therefore, the rules apply to magistrates well as judges.

The Ohio Code of Judicial Conduct limits judicial engagement in business activity
through Canon 2(C).

   Canon 2(C)(1): A judge shall not engage in either of the following
   financial and business dealings:

   (a) Dealings that reasonably may be perceived to exploit the
       judge’s judicial position;





   (b) Dealings that involve the judge in frequent transactions or
       continuing business relationships with lawyers or other persons
       likely to come before the court on which the judge serves.

   Canon 2(C)(3): A judge shall not serve as an officer, director, manager,
   general partner, advisor, or employee of any business entity except that . . .
   [Exceptions set forth and addressed below.].

   Canon 2(C)(4): A judge shall manage his or her investments and other
   financial interests to minimize the number of cases in which the judge is
   disqualified. As soon as the judge can do so without serious financial
   detriment, the judge shall divest himself or herself of investments and
   other financial interests that might require frequent disqualification.

Although the rules strictly prohibit judicial business activity, there are three narrowly
tailored exceptions set forth in Canon 2(C)(2), 2(C)(3)(a), and 2(C)(3)(b) in which a
judge or magistrate may participate in business activity outside his or her public office.
The Canon 2(C)(2) exception was adopted effective May 1, 1997, but is similar to former
Canon 5(C)(2) which was effective December 20, 1973 when the Code of Judicial
Conduct was adopted in Ohio. The Canon 2(C)(3) exceptions were added by amendment
to the Code, effective May 1, 1997.

   Canon 2(C)(2): Subject to the requirements of this Code, a judge may hold
   and manage investments of the judge and members of the judge’s family,
   including real estate, and engage in other remunerative activity.

   Canon 2(C)(3): … [A] judge, subject to the requirements of this Code,
   may manage and participate in either of the following:

        (a) A business closely held by the judge or member of the judge’s
            family;

        (b) A business entity primarily engaged in investment of the financial
            resources of the judge or member of the judge’s family.

There is one other exception, applicable only to part-time magistrates, part-time judges,
and retired judges. Through the Compliance section of the Code, part-time magistrates,
part-time judges, and retired judges who are eligible for recall to judicial service are not
required to comply with Canon 2(C)(3). Thus, part-time magistrates, part-time judges,
and retired judges may serve as officers, directors, managers, general partners, advisors,
or employees of a business entity, subject to the restrictions set forth in Canon 2(C)(1).

Outside these narrow exceptions, the canons are nearly an absolute bar to the active
outside business activities of a judge. The underlying ethical concerns are that active
involvement in outside business activities may exploit the judicial office, may interfere

with the performance of official duties, may detract from a judge’s ability to devote his or
her full-time to the bench, may reflect adversely on impartiality or dignity, or may result
in actual or apparent partiality. For discussion see Steven Lubet, Regulation of Judges’
Business and Financial Activities, 37 Emory L.J. 1 (1988); Steven Lubet, Beyond
Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal
Judges, 17 (1984); E. Wayne Thode, Reporter’s Notes to Code of Judicial Conduct, 80-3
(1973).

Judges and magistrates are also subject to Ohio Ethics Law. While engaging in the
limited business activities permitted by the Ohio Code of Judicial Conduct, a judge or
magistrate should be familiar with the application of Ohio Ethics Law. However, since a
judge or magistrate has such narrow permission to participate in business activities under
the Ohio Code of Judicial Conduct, the Board does not address further herein the
restraints within Ohio Ethics Law, except through reference to Ohio Ethics Commission
Opinion 96-004 (1996). In Opinion 96-004, the Ohio Ethics Commission advised that:

        (1) The Ohio Ethics Law and related statutes do not prohibit public
        officials and employees from engaging in private outside employment
        or business activities provided that no conflict of interest exists
        between the private interest and public duties of the public official or
        employee, and there is no misuse of the public office or employment
        of the official or employee, as described below; (2) Divisions (D) and
        (E) of Section 102.03 of the Revised Code prohibits a public official or
        employee from engaging in private outside employment or business
        activity with parties that are interested in matters before, regulated by,
        or doing or seeking to do business with his own public agency unless it
        is determined by his public employer that he is able to withdraw, as a
        public official or employee, from consideration of matters that affect
        the interests of the party with which he desires to engage in private
        outside employment or business activity; and (3) Division (D) of
        Section 102.03 of the Revised Code prohibits a public official or
        employee who engages in private outside employment or business
        activity from: (a) using public time, facilities, personnel, or resources
        in conducting a private business or while engaging in private outside
        employment including conducting demonstrations for clients using
        public equipment; (b) using his official title or identification on private
        business cards or other written materials or appearing in uniform while
        soliciting business or conducting demonstrations for clients; (c) using
        his relationship with other public officials and employees to secure a
        favorable decision or action by the other officials or employees
        regarding his private interests; (d) discussing, deliberating, or voting
        on any matter involving his private business, including recommending
        his outside employer’s or business’s services to his own public agency;
        (e) receiving fees for providing services rendered on projects that he
        has recommended in his official capacity; (f) participating in decisions
        or recommendations regarding his competitors; and (g) using his



        public position or authority in any other way to secure a benefit for his
        outside employer or private business.

Various extra-judicial business activities have been found to violate the canons of judicial
ethics in other jurisdictions. See, e.g., Steinberg v. State Comm’n on Judicial Conduct,
51 N.Y. 2d 74, 80-82, 409 N.E.2d 1378, 1381-83,431 N.Y.S. 2d 704 (1980) (removing a
judge from office for misconduct that included the operation of a private loan business
which created the appearance of misuse of power or prestige of office to contribute to the
success of a private business); In re Troy, 364 Mass. 15, 73, 306 N.E.2d 203, 236 (1973)
(disbarring a judge for misconduct which included his neglect of judicial duties when
engaging in practically a full-time business pursuit of development of real estate); In re
Foster, 271 Md. 449, 478, 318 A.2d 523, 538 (1974) (censoring a judge for misconduct
that included his active participation in developing and rezoning real estate he owned
thereby lending the influence of his office to advance a private business).

Participation in a family owned business has been viewed as proper when permitted by
the rules of a jurisdiction and conducted in accord with conditions set forth in the rule.
See e.g., In the Matter of Arthur D. Dalessandro, 483 Pa. 431, 444-47, 465, 397 A.2d
743, 749-51, 760 (1979) (finding no violation of judicial canons by a judge who served as
an officer and majority shareholder in a family owned automobile dealership business
because it was permitted by rule and the judge’s participation in the business did not (1)
tend to reflect adversely on his or her impartiality; (2) interfere with the proper
performance of judicial duties; (3) exploit his or her judicial position; or (4) involve the
judge in frequent transactions with lawyers or persons likely to come before the Court on
which the judge serves.

Judicial participation in business activities has been addressed several times by this
Board. In Opinion 88-7, the Board advised that a consulting business for political
candidates is the not the type of extra-judicial activity a judge should engage in. The
Board referred to the Code’s prohibition against serving as an officer, director, manager,
advisor, or employee of any business. The Board also mentioned as ethical concerns the
exploitation of the judicial position, the appearance of impropriety, the likelihood that the
candidates may be lawyers or persons likely to appear before the judge, and the
possibility that the judge would be engaging in political activity. See Ohio Sup Ct, Bd of
Comm’rs on Griev & Disc, Op. 88-7 (1988).

In Opinion 95-10, the Board advised that it was proper for a full-time judge taking the
bench to continue to co-own a farm with his or her spouse and to continue to raise beef
cattle and to sell hay, grain, and seed. The Board viewed these activities as falling within
the permitted area of management of real estate. See Ohio Sup Ct, Bd of Comm’rs on
Griev & Disc, Op. 95-10 (1995). In Opinion 91-10, the Board advised that a judge’s
participation in a for-profit partnership to provide continuing legal education would be
improper. In the Board’s view, a partner of such business would be considered an
officer, director, manager, advisor, or employee of the business and such business activity

would exploit the judicial position. See Ohio Sup Ct, Bd of Comm’rs on Griev & Disc,
Op. 91-10 (1991).

As to this request, the Board is asked to consider, as examples of proposed conduct, the
delivery of newspapers or the driving of a package delivery vehicle. The propriety of
these activities depends upon the facts and circumstances. First, it must be determined
whether the newspaper or delivery business is a business closely held by the judge or
magistrate or by the family of the judge or magistrate. If the business activity is not
within the confines of a closely held family owned business, then participation as an
employee, officer, manager, director, or advisor of the business is prohibited by the Ohio
Code of Judicial Conduct. If the business activity falls within the closely held family
owned business exception, a secondary inquiry is necessary to evaluate the activity for
impropriety. The business dealings may not (1) exploit the judge’s judicial position
through misuse of the position or through time consuming activities that detract from
judicial duties; (2) involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before the court on which the
judge serves; or (3) involve the judge in business interests that would require frequent
disqualification of the judge.

In conclusion, this Board advises that extra-judicial business activity by a full-time judge
or full-time magistrate is limited by Canon 2(C) of the Ohio Code of Judicial Conduct. A
full-time judge’s or a full-time magistrate’s involvement in business activities is
restricted to (1) holding and managing investments of the judge and members of the
judge’s family, including real estate; (2) participation in a business closely held by the
judge or member of the judge’s family; and (3) participation in a business entity primarily
engaged in investment of the financial resources of the judge or member of the judge’s
family. Participation in such business activities must not (1) exploit the judicial office
through misuse of the position or through time consuming activities that detract from
judicial duties; (2) involve frequent transactions or continuing business relationships with
lawyers or other persons likely to come before the court on which the judge or magistrate
serves; or (3) involve business interests that would require frequent disqualification of the
judge or magistrate. Extra-judicial business activity by a full-time judge or full-time
magistrate is also limited by Ohio Ethics Law as noted within this opinion.

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.