Can an Ohio judge recommend or endorse a lawyer who is running for an elected office in a bar association?

Plain-English summary

The Board addressed whether a judge may recommend or endorse a candidate for election to a bar association office. The question arose from a judge who, before taking the bench, had practiced at a private firm with a lawyer now running for a bar association elective position, and who asked whether the judge could recommend the lawyer.

The Board concluded that a judge may not provide such a recommendation or endorsement. It reasoned that doing so abuses the prestige of judicial office to advance the personal interests of another, in violation of Jud. Cond. R. 1.3, and creates an appearance of impropriety, in violation of Jud. Cond. R. 1.2. The Board noted it had previously addressed a judge's recommendation in this context, and it approved and followed Opinion 91-29.

In practice

The opinion holds that, under the Ohio Code of Judicial Conduct, a judge may not recommend or endorse a candidate for a bar association elective office. Per the opinion, such an endorsement lends the prestige of judicial office to advance another's personal interests, contrary to Rule 1.3, and creates an appearance of impropriety, contrary to Rule 1.2. The opinion approves and follows the Board's earlier Opinion 91-29.

Common questions

Q: Can an Ohio judge endorse a friend running for a bar association office?

A: The opinion concluded no; recommending or endorsing a candidate for a bar association elective office abuses the prestige of judicial office under Rule 1.3 and creates an appearance of impropriety under Rule 1.2.

Q: Does a prior personal or professional relationship change the answer?

A: The opinion addressed a judge who had practiced with the candidate and still concluded the endorsement was improper.

Q: Is this a new position for the Board?

A: The opinion approved and followed the Board's earlier Opinion 91-29, indicating a continuation of its prior view.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud. Cond. R. 1.2 (avoiding impropriety and the appearance of impropriety) and R. 1.3 (not abusing the prestige of judicial office to advance the personal interests of the judge or others).

Citations and references

Rules of Professional Conduct:

• Ohio Jud. Cond. R. 1.2 (appearance of impropriety); R. 1.3 (prestige of office)

Other opinions cited:

• Ohio BPC Op. 91-29 (approved and followed): a judge's recommendation or endorsement

See also

• Ohio BPC Op. 2009-011: Judge's Charitable Contributions and Name Recognition

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_11-003.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
614.387.9370 888.664.8345
RICHARD A. DOVE FAX: 614.387.9379 MICHELLE A. HALL
SECRETARY www.supremecourt.ohio.gov SENIOR STAFF COUNSEL

                                   OPINION 2011-3
                               Issued December 1, 2011

      Abusing the Prestige of Judicial Office: Bar Association Elections

SYLLABUS: A judge may not recommend or endorse a candidate for a bar association
elective office. By providing such recommendations and endorsements, a judge abuses
the prestige of judicial office to advance the personal interests of another in violation of
Jud.Cond.R. 1.3 and creates the appearance of impropriety in violation of Jud.Cond.R.
1.2. Opinion 91-29 is approved and followed.

QUESTION PRESENTED: May a judge recommend or endorse a candidate for
election to a bar association office?

FACTS: Prior to taking the bench, a judge practiced law in a private firm. A lawyer in
that firm is a candidate for an elective position in a bar association. The judge and the
lawyer worked together at the firm for a period of time, and the judge has asked
whether he may recommend the lawyer for the bar association position.

APPLICABLE RULES: Rules 1.2 and 1.3 of the Ohio Code of Judicial Conduct

OPINION: The Board has previously addressed a judge’s recommendation of a
candidate for a bar association elective office. In Opinion 91-29, the Board determined
that a judge should not endorse a bar association candidate or allow the judge’s name to
be included on a list of the candidate’s supporters. The Board concluded that “such
endorsement lends the prestige of the judge’s office to advance the private interests of
others and creates an appearance of impropriety in violation of Canon 2 of the Code of
Judicial Conduct.” Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op.
91-29, at syllabus (Dec. 6, 1991).
Op. 2011-3 2

   When the Board issued Opinion 91-29, the December 20, 1973, version of the

Code of Judicial Conduct was in effect. The Board relied primarily upon Canon 2B to
conclude that endorsements of bar association candidates are improper. Canon 2B was
part of the “appearance of impropriety” provisions in the 1973 Code and stated in
pertinent part as follows:

  A judge should not allow his family, social, or other relationships to
  influence his judicial conduct or judgment. He should not lend the prestige
  of his office to advance the private interests of others; nor should he convey
  or permit others to convey the impression that they are in a special
  position to influence him.

(Emphasis added.) Canon 2B of the Code of Judicial Conduct (1973) (superseded 1997).

   The Supreme Court of Ohio (Court) adopted substantial revisions to the 1973

Code of Judicial Conduct effective May 1, 1997. In the 1997 Code, the “lending the
prestige of office” language in former Canon 2B was relocated to Canon 4(A):

  A judge shall not allow family, social, political, or other relationships to
  influence the judge's judicial conduct or judgment. A judge shall not lend
  the prestige of judicial office to advance the private interests of the judge or others
  and shall not convey or permit others to convey the impression that they
  are in a special position to influence the judge.

(Emphasis added.) Canon 4(A) of the Code of Judicial Conduct (1997) (superseded
2009).

    The 1997 Code created a stricter “lending the prestige of office” standard than in

the 1973 Code by substituting “shall” for “should.” The 1997 Code also made clear that
a judge could not use the prestige of office to advance the judge’s own interests.
Regarding references and recommendations, the commentary to Canon 4 stated as
follows: “[a]lthough a judge should be sensitive to possible abuse of the prestige of
office, a judge may, based on the judge's personal knowledge, serve as a reference or
provide a letter of recommendation.” Commentary, Canon 4(A) of the Code of Judicial
Conduct (1997) (superseded 2009).

  The Court adopted the current Code of Judicial Conduct effective March 1, 2009,

and incorporated the reference to “abuse” of the prestige of judicial office from the
Op. 2011-3 3

Canon 4(A) Commentary into the Code itself. Specifically, the “prestige of office”
provision of former Canons 2B (1973) and 4(A) (1997) is now found in Jud.Cond.R. 1.3:

  A judge shall not abuse the prestige of judicial office to advance the personal
  or economic interests of the judge or others, or allow others to do so.

(Emphasis added.) Jud.Cond.R. 1.3.

   At issue is whether Jud.Cond.R. 1.3, which prohibits a judge from “abusing” the

prestige of office, rather than “lending” the prestige of office, requires the Board to
withdraw its position on judicial endorsements of candidates for a bar association
elective office. In other words, does a judge abuse the prestige of office when he or she
recommends or endorses a bar association candidate?

   Jud.Cond.R. 1.3 is identical to Rule 1.3 of the American Bar Association’s current

Model Code of Judicial Conduct (Model Code). The Model Code is the product of the
ABA’s Joint Commission to Evaluate the Model Code of Judicial Conduct
(Commission), and was adopted by the ABA’s House of Delegates on February 12, 2007.
The Reporters’ Notes to the Model Code detail the Commission’s reasons for replacing
the “lending the prestige of office” standard with the “abusing the prestige of office”
standard:

  In the Commission’s view, the term “lend” created unnecessary confusion.
  For example, a judge who writes a letter of recommendation for a law
  clerk “lends” the prestige of the judge’s office to the recommendation in
  the ordinary sense of the term. Some judges told the Commission that
  they decline to write letters on their clerks’ behalf as a consequence. In the
  Commission’s view, the judge who uses the prestige of his or her office in
  this way has done nothing problematic. . . The problem that Rule 1.3 seeks
  to address is therefore more accurately characterized as the abuse of the
  prestige of judicial office.

Charles G. Geyh & W. William Hodes, Reporters’ Notes to the Model Code of Judicial
Conduct 22 (ABA 2009). Consistent with the Commission’s rationale that judges should
be able to write letters of recommendation, Comment [2] to Jud.Cond.R. 1.3 states that
judges “may provide a reference or recommendation for an individual based upon the
judge’s personal knowledge” and use official letterhead for this purpose. The Court
added this comment during the 2009 Code revisions.
Op. 2011-3 4

     Based upon the legislative history of Model Rule 1.3 detailed in the Reporters’

Notes, it is the Board’s view that the primary purpose for substituting the term “abuse”
for “lend” in regard to the prestige of judicial office was to make clear that judges may
provide references and letters of recommendation based upon personal knowledge.
Even prior to the adoption of Jud.Cond.R. 1.3, and consistent with the Commentary to
former Canon 4(A), the Board had determined that judges may provide references and
recommendations for law school applicants, law clerks seeking employment, lawyers
being considered for federal judgeships, and lawyers pursuing certification as
specialists. See Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 98-4
(Apr. 3, 1998); Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 95-5
(Apr. 7, 1995). The vast majority of states allow judges to provide recommendations in
the areas of education, employment, and bar admission. See Cynthia Gray,
Recommendations by Judges, American Judicature Society (Nov. 2009). However, the
legislative history, current Code of Judicial Conduct, and the comments in the Code all
fail to reference recommendations in the setting of a bar association election. 1

   Neither the Board nor equivalent authorities in other states have rendered an

opinion interpreting the “abusing the prestige of office” language of Jud.Cond.R. 1.3
under the 2007 Model Code.2 The plain meaning of “abuse” is to “use improperly” or
“misuse.” Black’s Law Dictionary 10 (9th Ed.2009); Oxford English Dictionary,
http://www.oed.com/view/Entry/822 (online version Sept. 2011). “Lend,” the former
prestige of office term, means “to allow the temporary use of (something).” Black’s at
985; Oxford at http://www.oed.com/view/Entry/107229. As stated in the comments
following Jud.Cond.R. 1.3, “the test for a violation [of the prestige of office standard]
may be less restrictive under the [former] Ohio Code.” Jud.Cond.R. 1.3, Comment,
Comparison to Ohio Code of Judicial Conduct. Despite the possible loosening of the
“prestige of office” standard, the plain meaning of the term “abuse” indicates that if the
Board finds a use of judicial office to be improper, the use will violate Jud.Cond.R. 1.3.

  Upon reviewing recommendations and endorsements in bar association elections

within the abuse of judicial office boundary, the Board again concludes that such
recommendations and endorsements violate the Code of Judicial Conduct. With
recommendations in education, employment, bar admission, federal judgeships, and

1
Jud.Cond.R. 4.1 does prohibit the public endorsement or opposition of a candidate for “another public office.” A
bar association is a private, voluntary membership organization. The Board cannot conclude that an elective
position in a bar association is “another public office.” Accord Op. 91-29 at 2.
2
Prior to the adoption of the “abusing the prestige” standard in 2007, at least three judicial ethics opinions
concluded that bar association endorsements violate the Code of Judicial Conduct. See Ok. Jud. Eth. Adv. Pan., Op.
2002-3 (Feb. 27, 2002); Fla. Sup. Ct., Jud. Eth. Adv. Comm. Op. 2001-01 (Feb. 19, 2001); Md. Jud. Eth. Comm.
Op. 1997-04 (March 31, 1997).
Op. 2011-3 5

lawyer specialization, a judge provides a private evaluation of a lawyer to an individual
or group of individuals responsible for selection. Although the judge is recommending
the lawyer or law student for a particular position, the judge is not favoring or actively
promoting one lawyer or student over another. A judge providing these
recommendations also has a reasonable expectation that his or her views of the lawyer
or law student will not be widely distributed or used in a public advertising campaign.

   In contrast, the recommendation or endorsement of a lawyer for a bar association

elective office is neither submitted for private consideration nor neutral as to other
candidates. These recommendations and endorsements are part of an election
campaign in a voluntary membership organization by which a judge communicates that
one lawyer in the organization is preferred over others in the race. In fact, it is likely the
influence of the judicial office itself that causes judges to be asked to provide
recommendations and endorsements in bar association elections. Unlike education,
employment, bar admission, federal judgeship, and lawyer specialization
recommendations, to have any effect the recommendation of a bar association candidate
must be disseminated to the voting members of the organization. A judge who makes a
bar association recommendation or endorsement would have to reasonably expect that
the judge’s views of the candidate would be used in campaign advertising and lists of
supporters and shared generally with bar association members. For all of these reasons,
the Board finds that judicial recommendations and endorsements of bar association
candidates violate Jud.Cond.R. 1.3 as an improper use, and therefore an “abuse,” of the
prestige of office to advance the personal interests of a third person.

   The prestige of office standard in Jud.Cond.R. 1.3 must also be read in

conjunction with Jud.Cond.R. 1.2. That rule requires judges to “act at all times in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary” and “avoid impropriety and the appearance of
impropriety.” Jud.Cond.R. 1.2. Bar associations are composed of lawyers and judges in
a particular geographic or practice community. Identifying one candidate in a bar
association election as the better candidate shows favoritism and does not promote
confidence in the judge’s ability to remain impartial. This may imply that the candidate
has the ability to influence the judge or that the judge is seeking advantage in his or her
reelection campaign. The judge may also be faced with frequent disqualification. See
Jud.Cond.R. 3.1. Conduct that undermines a judge’s impartiality constitutes
impropriety. See Ohio Code of Judicial Conduct, Terminology, definition of
“impropriety.” The Board therefore further concludes that judicial recommendations
and endorsements of candidates for a bar association elective office create the
appearance of impropriety and are prohibited by Jud.Cond.R. 1.2.
Op. 2011-3 6

CONCLUSION: Although Jud.Cond.R. 1.3 now prohibits a judge from “abusing” the
prestige of judicial office to advance the personal interests of others, rather than
“lending” the prestige of judicial office to advance such interests, the Board hereby
approves and follows Opinion 91-29. Judicial recommendations and endorsements of
candidates for a bar association elective office indicate that one lawyer is preferred over
other lawyers, are subject to public dissemination, and targeted to a specific community
of lawyers and judges. Such recommendations and endorsements are an improper use
of the prestige of judicial office to advance the personal interests of another and call into
question a judge’s ability to act impartially in the performance of judicial duties.
Accordingly, these recommendations and endorsements violate Jud.Cond.R. 1.2
(Promoting confidence in the judiciary) and Jud.Cond.R. 1.3 (Avoiding abuse of the
prestige of judicial office).

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 Ohio
Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.