Can a court-employed attorney mediator take a private paid mediation of a case pending on the docket of the court that employs the mediator?

Currency note

This opinion was issued in 2001, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. The DR 9-101(B) provision discussed here is now addressed by Ohio Prof. Cond. R. 1.11 and 1.12, and the Ohio Ethics Law statutes cited may also have changed. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules and the current Ohio Ethics Law before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed a common pleas court that employs two part-time attorney/mediators whose primary duty is to mediate civil cases referred to the court mediation program by the assigned judge. Both mediators also maintain private mediation practices. Because their court schedules fill months in advance, the court adopted a local rule allowing a party who needs a timely mediation before the final pre-trial date, and who cannot get a court-based session, to pay for a private mediation by a mediator from the court's list, with the agreement of all parties.

The Board treated a court-employed attorney/mediator as a judicial employee subject to Ohio Ethics Law and, as an attorney, also subject to the Ohio Code of Professional Responsibility. The pertinent statute was Section 2921.43(A)(1) of the Ohio Revised Code, under which a public servant may not solicit or accept compensation, beyond that allowed by law, to perform official duties. The pertinent ethics rule was DR 9-101(B), under which a lawyer may not accept private employment in a matter in which the lawyer had substantial responsibility as a public employee.

The Board's view was that Section 2921.43(A)(1) prohibits a court-employed attorney/mediator from receiving outside compensation for performing his or her official job duty, which is to mediate civil cases ordered to the court mediation program by the assigned judge. Because any case pending on the court's docket may be referred to the program, the Board concluded the mediator should not conduct a private fee-paid mediation of any case pending on the employing court's docket. The Board added that the mediator is not prohibited from conducting private fee-paid mediations of matters that are not pending before the employing court, or of civil cases pending in other jurisdictions.

Common questions

Q: Could a court-employed mediator take a private paid mediation of a case on the employing court's docket?

A: No. The opinion concluded that doing so is improper under Section 2921.43(A)(1) of the Ohio Revised Code and DR 9-101(B), because mediating cases referred by the court is the mediator's official public duty.

Q: Could the mediator do private paid mediations at all?

A: Yes, of matters not pending before the employing court. The opinion concluded the mediator may conduct private fee-paid mediations of matters not pending before that court, including civil cases in other jurisdictions.

Q: Why did the rule reach cases that had not yet been referred to the court program?

A: The opinion reasoned that because any case pending on the court's docket may be referred to the court mediation program by the assigned judge, a private paid mediation of any such pending case would be compensation for the mediator's official duty.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 9-101(B) (a lawyer may not accept private employment in a matter in which the lawyer had substantial responsibility as a public employee), together with Ohio Ethics Law, principally Section 2921.43(A)(1) of the Ohio Revised Code (a public servant may not accept compensation beyond that allowed by law for performing official duties) and Sections 102.01 and 102.08. The professional-conduct subject is now addressed by Ohio Prof. Cond. R. 1.11 and 1.12 (Model Rules 1.11 and 1.12).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 9-101(B)

Statutes:

• Ohio Revised Code Section 2921.43(A)(1) (public servant accepting outside compensation for official duties)
• Ohio Revised Code Sections 102.01(B), 102.01(F)(2), 102.08 (Ohio Ethics Law and the Board's advisory authority over judicial employees)

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

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-01-005.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 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us

                                         OFFICE OF SECRETARY

                                     OPINION 2001-5
                                   Issued October 5, 2001

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: It is improper under Section 2921.43(A)(1) of the Ohio Revised Code and
DR 9-101(B) of the Ohio Code of Professional Responsibility for a court-employed
attorney/mediator to conduct a private fee-paid mediation of any case pending on the
docket of the employing court. A court-employed attorney/mediator is not prohibited
from conducting private fee-paid mediations of matters that are not pending before the
employing court or of civil cases pending in jurisdictions outside the court in which the
attorney/mediator is employed.

OPINION: This opinion addresses court-employed attorney/mediators conducting
private fee-paid mediations of civil cases.

    Is it proper for a court-employed attorney/mediator to conduct a private
    fee-paid mediation of a civil case referred by the assigned judge to the
    court mediation program but which cannot be timely scheduled for court
    mediation prior to the final pre-trial date?

A common pleas court employs two attorneys part-time in the court mediation program.
The primary job duty of the attorney/mediators is to mediate civil cases filed in the court
and referred by the assigned judge to the court mediation program. No additional fee,
beyond the court’s filing fee, is charged to the parties for the court-based mediation. The
court may refer a case to the court mediation program upon the request of the parties or
sua sponte. Both attorney/mediators maintain a private mediation practice outside the
court.

Due to the large volume of cases referred to the court mediation program, an
attorney/mediator’s schedule is full several months in advance. Timely scheduling of a
court-based mediation prior to the court’s scheduled pre-trial date is particularly difficult
when a continuance of a scheduled mediation date is requested by a party.

To resolve mediation scheduling problems, the court adopted a local rule permitting
private mediation prior to the final pre-trial date. If a party requests a continuance, the
administrative assistant to the mediator confirms whether it is possible to reschedule the
court-based mediation prior to the final pre-trial date. If there is no available mediation
session time available, the continuance will be denied unless the party requesting the
continuance secures the agreement of all parties to the continuance and the requesting
party agrees to pay the fee for the private mediation, unless otherwise agreed upon by the
Opinion 2001-5 2

parties. Upon agreement, the parties may select a mediator from the court’s list of private
mediators.

A court-employed attorney/mediator is a judicial employee subject to Ohio Ethics Law.
The Board of Commissioners on Grievances and Discipline is the appropriate entity to
advise judicial employees on the application of Ohio Ethics Law. Ohio Rev. Code Ann.
§§ 102.01(B), 102.01(F)(2), 102.08 (West 1994). A judicial employee who is an attorney
is also subject to the Ohio Code of Professional Responsibility. The Board of
Commissioners on Grievances and Discipline is the appropriate entity to advise attorneys
on the application of the Ohio Code of Professional Responsibility. Gov. Bar R. V
§2(C).

The pertinent provision of Ohio Ethics Law is set forth below.

   Section 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 act or service in the public servant’s public
       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.

The pertinent provision of the Ohio Code of Professional Responsibility is DR 9-101(B).

   DR 9-101(B) A lawyer shall not accept private employment in a matter in
   which he [she] had [has] substantial responsibility while he [she] was [is]
   a public employee.

It is the Board’s view that Section 2921.43(A)(1) of the Ohio Revised Code prohibits a
court-employed attorney/mediator from receiving outside compensation for the
performance of his or her official job duty. Under the facts presented, it is the official job
duty of a court-employed attorney/mediator to mediate civil cases ordered to the court
mediation program by the assigned judge. Because each case pending on the court’s
docket may be referred to the court mediation program by the assigned judge, the court-
employed attorney/mediator should not conduct a private fee-paid mediation of any case
pending on the docket of the employing court.

DR 9-101(B) of the Ohio Code of Professional Responsibility prohibits an attorney from
accepting private employment in a matter in which the attorney had [has] substantial
responsibility as a public employee. A court-employed attorney mediator whose official
duty is to mediate cases referred to the court mediation program has “substantial
responsibility” in the matter. Even if the case is assigned to one attorney/mediator, it is
Opinion 2001-5 3

the Board’s view that none of the attorney/mediators in the court mediation program
should conduct private fee-paid mediation of any civil case referred to the court
mediation program in which they are employed.

Nevertheless, these rules do not prohibit a court-employed attorney/mediator from
conducting private fee-paid mediations of matters not pending before the employing
court or of civil cases pending in jurisdictions outside the court in which the
attorney/mediator is employed. If a matter is not pending before the employing court or
if a civil case is under the jurisdiction of a court outside the jurisdiction of the court in
which the attorney/mediator is employed, then the attorney/mediator does not have an
official duty to mediate the matter and does not have substantial responsibility in the
matter. However, before conducting such private fee-paid mediations, a court-employed
attorney/mediator must determine whether his or her employment agreement with the
court permits such outside employment.

For the reasons stated above, the Board advises as follows. It is improper under Section
2921.43(A)(1) of the Ohio Revised Code and DR 9-101(B) of the Ohio Code of
Professional Responsibility for a court-employed attorney/mediator to conduct a private
fee-paid mediation of any case pending on the docket of the employing court. A court-
employed attorney/mediator is not prohibited from conducting private fee-paid
mediations of matters that are not pending before the employing court or of civil cases
pending in jurisdictions outside the court in which the attorney/mediator is employed.

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.