Can a former magistrate, now in private practice, represent someone in post-decree matters from a divorce the magistrate heard?

Currency note

This opinion was issued in 2005, 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Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded.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 former-adjudicative-officer conflict formerly in DR 9-101(A) is now addressed by Ohio Prof. Cond. R. 1.12. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Plain-English summary

The Board addressed a lawyer who had previously served as a magistrate and now practices privately. The question was whether the lawyer may represent a party in post-decree matters (such as modifying child custody, parenting time, or child support, or defending or initiating a contempt action to enforce a prior order) when the lawyer, as magistrate, served in that person's original divorce or dissolution action.

The Board concluded that this representation is improper under DR 9-101(A), which barred a lawyer from accepting private employment in a matter in which the lawyer had acted in a judicial capacity. The Board treated the post-decree proceedings as part of, or directly connected to, the original action the magistrate heard, so the former magistrate's later private representation in those matters fell within the prohibition.

Common questions

Q: Can a former magistrate take a client in a custody-modification case from a divorce they presided over?

A: No. The opinion concluded that under DR 9-101(A) the former magistrate may not represent a party in post-decree matters from the original divorce or dissolution in which the magistrate served.

Q: Does it matter that the new matter is a separate post-decree motion?

A: No. Per the opinion, post-decree matters such as custody, parenting time, support, or contempt to enforce the prior order are tied to the original action, so the bar applies.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 9-101(A), which prohibited a lawyer from accepting private employment in a matter in which the lawyer had acted in a judicial capacity. The current analogue is Ohio Prof. Cond. R. 1.12 (Model Rule 1.12), addressing former judges, arbitrators, mediators, and other third-party neutrals.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 9-101(A)
• Current analogue: Ohio Prof. Cond. R. 1.12 (Model Rule 1.12)

See also

• Ohio BPC Op. 2005-008: Retired Judge Practicing Law and Serving as a Private Judge
• Ohio BPC Op. 2003-007: Attorney Serving as an Occasional Special Prosecutor While Representing Criminal Defendants
• Ohio BPC Op. 1988-015: Former Public Defender as Prosecutor or Special Prosecutor

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-05-005.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
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 2005-5
                                Issued June 10, 2005
                            Withdrawn by Adv. 2017-04

[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 DR 9-101(A) of the Ohio Code of Professional
Responsibility for a former magistrate, now privately practicing law, to represent
a person in post-decree matters (such as modifying child custody, parenting time,
or child support, or defending or initiating a contempt order to enforce a prior
court order) when he or she served as magistrate in the person’s original divorce
or dissolution action.

OPINION: This opinion addresses a question regarding ethical restrictions on
legal representation of clients by a former magistrate who leaves court
employment and enter the private practice of law.

    Is it proper for a former magistrate, now privately practicing law, to
    represent a person in post-decree matters (such as modifying child
    custody, parenting time, or child support, or defending or initiating
    a contempt order to enforce a prior court order) when he or she
    served as magistrate in the person’s original divorce or dissolution
    action?

Former magistrates are subject to post-employment restrictions. The Ohio Code
of Professional Responsibility restricts private employment in DR 9-101(A).

    DR 9-101(A) A lawyer shall not accept private employment in a matter
    upon the merits of which he (she) has acted in a judicial capacity.

Ethical Consideration 9-3 explains that acceptance of such employment would
give the appearance of impropriety.

    EC 9-3 After a lawyer leaves judicial office or other public
    employment, he [she] should not accept employment in connection
    with any matter in which he [she] had substantial responsibility
    prior to his [her] leaving, since to accept employment would give
    the appearance of impropriety even if none exists.

Ohio Ethics Law restricts private employment in Section 102.03(A)(1) of the Ohio
Revised Code.

Op. 2005-5 2

  R.C. 102.03(A)(1) No present or former public official or employee shall,
  during public employment or service or for twelve months thereafter,
  represent a client or act in a representative capacity for any person on any
  matter in which the public official or employee personally participated as a
  public official or employee through decision, approval, disapproval,
  recommendation, the rendering of advice, investigation, or other
  substantial exercise of administrative discretion.

  Ohio Rev.Code Ann. § 102.03(A)(1) (West Supp. 2005)

As to DR 9-101(A), the words “matter” or “merits” are not defined in the Ohio
Code of Professional Responsibility, but case law is instructive. A former judge
received a public reprimand for violating DR 9-101(A) when seven years after
granting an uncontested divorce as judge he privately represented one of the
parties to a divorce and filed a Motion to Modify Parental Rights and
Responsibilities. Disciplinary Counsel v. Christ, (1996), 74 Ohio St.3d 308, 309.
Despite the former judge’s explanation at the hearing that his judicial
involvement in the uncontested divorce had been limited to signing the final
judgment entry which he considered to be an act perfunctory and insufficient to
bar his subsequent private employment, his act violated the rule. Id. at 309.

Thus, it is the Board’s view that a divorce or dissolution and any subsequent post-
decree matters (such as a modification of child custody, parenting time, child
support, or defending or initiating a contempt order to enforce a prior court
order) are the same matter for purposes of DR 9-101(A). It is also the Board’s
view that a person who serves as magistrate in the original divorce or dissolution
action, has acted upon the merits in his or her official capacity.

As to Section 102.03(A)(1) of the Ohio Revised Code, if a magistrate had any
personal participation through decision, approval, disapproval, recommendation,
the rendering of advice, investigation, or other substantial exercise of
administrative discretion, then the magistrate is prohibited during employment
and for twelve months following employment from accepting private
representation of a client on the matter. While this restriction applies for only
twelve months following employment; DR 9-101(A) applies indefinitely and
therefore under the facts presented, it controls the answer to the question raised.

In conclusion, the Board advises that it is improper under DR 9-101(A) of the
Ohio Code of Professional Responsibility for a former magistrate, now privately
practicing law, to represent a person in post-decree matters (such as modifying
child custody, parenting time, or child support, or defending or initiating a
contempt order to enforce a prior court order) when he or she served as
magistrate in the person’s original divorce or dissolution action.

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

Op. 2005-5 3

Attorney’s Oath of Office. The requester of the opinion, pursuant to
Section 102.08 of the Ohio Revised Code, may reasonably rely on the
opinion as it applies to Ohio Ethics Law and related statutes.