In a county with more than one county court judge, can the law partners of a part-time judge appear before another county court judge?

Currency note

This opinion was issued in 2005 under the former Ohio Code of Judicial Conduct, which the Board flagged as superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. The provisions on a part-time judge's law practice and on disqualification discussed here have been renumbered and revised in the current Code. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Plain-English summary

The Board addressed whether the partners and associates of a part-time county court judge may appear before another county court judge in the same county. It concluded that in counties having more than one county court judge, it is proper for the law partners and associates of a county court judge to appear in county court before another county court judge, regardless of whether the county court is divided into areas of separate jurisdiction.

The opinion expressly modified three earlier opinions, Opinions 94-2, 87-029, and 87-022, to the extent they were inconsistent with this conclusion. The result lets a part-time judge's firm members practice before the judge's county court colleagues, while the judge's own disqualification obligations in matters involving the firm continue to apply.

Common questions

Q: Can a part-time county court judge's law partners appear before another judge of the same county court?

A: Yes, where the county has more than one county court judge. The opinion concluded the partners and associates may appear before another county court judge, divided jurisdiction or not.

Q: Did this change earlier Ohio opinions?

A: Yes. The opinion modified Opinions 94-2, 87-029, and 87-022.

Background and rules framework

The opinion applies the former Ohio Code of Judicial Conduct provisions governing a part-time judge's continued law practice and the related disqualification concerns (Canon 3 on adjudicative and disqualification duties; Canon 4 on a part-time judge's practice of law). These provisions are addressed, renumbered and revised, in the current Code. The opinion modified Opinions 94-2, 87-029, and 87-022.

Citations and references

Rules of Judicial Conduct:

• Former Ohio Code of Judicial Conduct Canon 3; Canon 4

Other opinions cited:

• Ohio Opinions 94-2, 87-029, 87-022: modified by this opinion

See also

• Ohio BPC Op. 1987-022: Part-Time Judge: Law Partners and Relatives
• Ohio BPC Op. 1987-029: County Court Judges Practicing Law
• Ohio BPC Op. 1994-002: Part-Time County Court Judge Practicing Law in Assigned Court

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-05-004.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us

                                       OFFICE OF SECRETARY
                                 OPINION 2005-4
                               Issued April 15, 2005

[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: In counties having more than one county court judge, it is proper
for law partners and associates of a county court judge to appear in county court
before another county court judge, regardless of whether or not the county court
is divided into areas of separate jurisdiction. This Opinion modifies Opinions 94-
2, 87-029, and Op. 87-022.

OPINION: This opinion addresses whether partners and associates of a part-
time county court judge may practice in the county court before another county
court judge. For purposes of this opinion, the term “law partners and associates”
is used, but the opinion applies as well to attorneys who are employees,
shareholders, and members of legal professional associations and limited liability
companies formed for the practice of law.

   In counties having more than one county court judge, is it proper for
   law partners and associates of one county court judge to appear in
   county court before another county court judge?

Practice of law by county court judges

In Ohio, county court judgeships are part-time positions. Ohio Rev. Code Ann.
§1907.11(A) (West Supp. 2004). Some Ohio counties have only one county court
judge, some have more than one. Ohio Rev. Code Ann. §1907.11(A) (West Supp.
2004).

Part-time county court judges are permitted to practice law. Ohio Rev. Code
Ann. §1907.16(B) (West Supp. 2004) and Compliance with the Ohio Code of
Judicial Conduct, Section (B)(1).

But, the practice of law by part-time judges is limited. Under the Ohio Code of
Judicial Conduct, a part-time county court judge “[s]hall not practice law in the
court on which he or she serves or in any court subject to the appellate
jurisdiction of the court on which he or she serves, or act as a lawyer in a
proceeding in which he or she has served as a judge or in any other related
proceeding.” Compliance with the Ohio Code of Judicial Conduct, Section (B)(2).

Op. 2005-4 2

A part-time judge is described as “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. Compliance with the Ohio Code of Judicial Conduct, Section (B)(1).
Ohio law states “[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 the
judge’s term of office.” Ohio Rev. Code Ann. §1907.16(B) (West Supp. 2004).

In counties having more than one county court judge, the county court may be
divided by the presiding judge into areas of separate jurisdiction. Ohio Rev. Code
Ann. §1907.15 (A)(1) and (2) (West Supp. 2004). But, even if a county court is
divided into areas of separate jurisdiction, the jurisdiction of each county court
judge is coextensive with the boundaries of the county court district. Ohio Rev.
Code Ann. §1907.15(B) (West Supp. 2004). In Thomas v. Corrigan (1999), 135
Ohio App.3d 340, 345, the Eleventh District Court of Appeals stated “[a]lthough
R.C. 1907.15(A)(1) refers to each judge’s area as an area of separate jurisdiction,
the language of R.C. 1907.15(B) clearly grants each judge jurisdiction to hear
cases with territorial jurisdiction throughout the county court district.” [Prior to
July 1, 1997, Section 1907.15(B) stated “[t]he jurisdiction of each county court
judge shall be limited to his [her] area of jurisdiction. Id.]

Because a county court judge’s jurisdiction is coextensive with the boundaries of
the county court district, rather than limited to an area of separate jurisdiction,
each county court within the county court district is considered “the court on
which the judge serves” for purposes of the Compliance Section of the Ohio Code
of Judicial Conduct.

Thus, a county court judge is not permitted to practice law in the court on which
he or she serves or in any county court within the county court district. This view
was expressed in Op. 87-029 (1987) advising that “[a] county court judge may not
practice in the county court in which he resides, whether or not there are separate
area of jurisdiction in the county court” and as stated in the Syllabus of that
opinion “[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.” Ohio Sup.Ct., Bd. Commrs. Grievances &
Discipline, Op. 87-029 (1987).

Further, county court judges may not hear cases in which their law partner or
associates appear as counsel. Ohio Sup.Ct., Bd. Commrs. Grievances &
Discipline, Op. 87-029 (1987). A judge is required to disqualify from a
proceeding in which his or her impartiality might reasonably be questioned,
including but not limited to instances where a lawyer with whom the judge
previously [or currently] practices law served during the association as a lawyer
concerning the matter. Canon 3(E)(1) and 3(E)(1)(b) Ohio Code of Judicial
Conduct.

Op. 2005-4 3

Practice of law by partners and associates of county court judges

Because part-time county court judges are permitted to practice law, questions
arise as to what restrictions upon the practice of law are placed upon the judge’s
partners and associates.

Opinion 87-022 does not address questions regarding practice by law partners
before a county court but addresses questions related to practice of law in a
municipal court by a law director whose law partner/father is the municipal
court judge. But, the Syllabus of Opinion 87-022 broadly states 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.” In the opinion, the Board refers
to Section A(2) of Compliance with the Code of Judicial Conduct and states “a
part-time judge, his [her] law partners and members of his [her] firm may not
practice 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.” Ohio Sup.Ct., Bd.
Commrs. Grievances & Discipline, Op. 87-022 (1987). That is no longer the
Board’s view. See Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 98-3
(1998).

The Board now modifies Opinion 87-022. The Board disavows the broad
statement in the Syllabus and within the opinion that law partners and associates
are precluded from practicing law in the court on which a part-time judge serves.

In Opinion 87-029, the Board declined to answer whether lawyers who practice
law with a county court judge may appear before another county court judge.
The Board explained that “[w]hether or not an attorney represents his [her] client
for any reason is a matter decided by the individual attorney and his or her
client.” Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 87-029 (1987).

The Board now modifies Opinion 87-029. The modification is that Board will
provide the guidance it declined to offer--lawyers who practice law with a county
court judge may appear before another county court judge.

In Opinion 94-2, the Board advised that “[t]he 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.” In an attempt to
clarify restrictions on the practice of law by law partners or associates of a part-
time county court judge, the Board set forth three premises. “First, partners or
associates of a part-time county court judge may not practice law before a judge
who is their partner or associate. . . . 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. . . . Third, in county courts not divided into areas of separate
jurisdiction, it would be improper for the partners or associates of a part-time

Op. 2005-4 4

judge to appear before any judge of that court.” Ohio Sup.Ct., Bd. Commrs.
Grievances & Discipline, Op. 94-2 (1994).

The Board now modifies Op. 94-2. The modification is that partners and
associates of a part-time county court judge may practice law in a county court
where the judge is sitting by assignment, provided it is not before the judge who
is their partner or associate.

The defining point is not whether the court is divided into separate areas of
jurisdiction, for divided or not, each county court judge’s jurisdiction is co-
extensive with the boundaries of the county court district. The defining
consideration is whether appearances of law partners or associates of a part-time
county court judge before another judge of the county court creates an
appearance of impropriety or of improper influence before a tribunal. The
Board’s view is that an appearance of impropriety or improper influence does not
occur when a county court judge’s partners or associates appear before another
county court judge. This view is consistent with the Board’s view in Opinion 98-3
that law partners or associates of a part-time municipal or common pleas court
magistrate may practice law in the court on which the part-time magistrate
serves, so long as the partners or associates do not appear before the part-time
magistrate. Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 98-3 (1998).

Nevertheless, individual facts and circumstances must be considered. If a county
court judge, not otherwise disqualified under Canon 3(E), decides that he or she
cannot be impartial when partners or associates of another county court judge
appear in court, the judge should disqualify himself or herself under Canon
3(E)(1) of the Ohio Code of Judicial Conduct.

Conclusion

In conclusion, the Board advises that in counties having more than one county
court judge, it is proper for law partners and associates of a county court judge to
appear in county court before another county court judge, regardless of whether
or not the county court is divided into areas of separate jurisdiction. This
Opinion modifies Opinions 94-2, 87-029, and Op. 87-022.

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.