Can a former judge in Ohio keep using the title 'Judge' or 'Honorable' after leaving the bench?
Apply this to your situation
This page answers the general question as of 2013. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Plain-English summary
The Board considered whether former judges may keep using judicial titles after leaving the bench, updating its 1993 Opinion 93-8, which had addressed the question only for the "private" practice of law under the former Code of Professional Responsibility. The Board rejected the adage "once a judge, always a judge" as having no basis in the Rules of Professional Conduct or the Code of Judicial Conduct, and concluded that a former judge is no longer a judge once the commission ends.
The Board held that a former judge who uses a judicial title while practicing law, in any practice setting, violates Prof. Cond. R. 7.1 (false or misleading communication), 7.5 (professional designation), and 8.4(a), (c), and (e), because the title falsely suggests an ability to use past judicial prestige to influence courts or officials. Where Prof. Cond. R. 5.7 makes the rules apply to a former judge's law-related business, the same analysis controls. Even when the rules do not otherwise apply, Prof. Cond. R. 8.4 reaches conduct outside law practice, so the Board found it could envision no setting (other business, government, or charity and community work) in which a former judge's use of a judicial title would not violate 8.4(c) or (e).
The Board identified limited exceptions. Retired assigned judges (RAJs), acting judges, and private judges hold judicial authority in designated cases and must be identifiable as the decision-maker, so they may use judicial titles in case-related entries, orders, decisions, and correspondence. RAJs and acting judges remain bound by Jud. Cond. R. 1.3 (no abuse of the prestige of office) and so may not use the title in law-related or other business, including arbitration or mediation. Any former judge may factually describe prior judicial service in biographies, resumes, and curricula vitae, so long as the description follows the name and is not cast as a title. Finally, the opinion noted that a former judge does not commit misconduct merely because others address them as "Judge," provided the former judge does not insist on it, while sitting judges must make reasonable efforts under Jud. Cond. R. 1.2 and 2.4(C) to ensure former judges appearing before them are not addressed by judicial titles in proceedings.
Currency note
The Ohio Board of Professional Conduct flags this opinion as Not Current. The opinion's own header states: "NOT CURRENT: See subsequent amendments to Prof. Cond. R. 8.2, effective June 1, 2014." Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct and Code of Judicial Conduct before relying on any specific rule, title, or requirement mentioned here.
Common questions
Q: Could a former Ohio judge put "Judge" or "Hon." on law firm letterhead or business cards?
A: The opinion concluded no; using a judicial title in the practice of law was false and misleading under Prof. Cond. R. 7.1 and 7.5 and implied improper influence under 8.4(e).
Q: Did the ban reach non-law jobs, like a government post or charity work?
A: The opinion concluded yes; because Prof. Cond. R. 8.4 reaches conduct outside law practice, the Board found no setting in which a former judge's affirmative use of a judicial title would not violate 8.4(c) or (e).
Q: Were there any situations where a former judge could still use the title?
A: The opinion concluded that retired assigned, acting, and private judges may use a judicial title in case-related entries, orders, decisions, and correspondence, because they exercise judicial authority in those matters.
Q: Could a former judge still mention prior judicial service in a resume?
A: The opinion concluded yes; a former judge may include truthful, factual descriptions of past judicial service in biographies, resumes, and curricula vitae, as long as the description follows the name and is not framed as a title.
Background and rules framework
The opinion interprets Ohio Prof. Cond. R. 7.1 (false, misleading, or nonverifiable communications), 7.5 (firm names and professional designations), 5.7 (law-related services), and 8.4 (misconduct), corresponding to Model Rules 7.1, 7.5, 5.7, and 8.4. It also applies Ohio Code of Judicial Conduct Rules 1.2 (promoting confidence in the judiciary), 1.3 (no abuse of the prestige of office), and 2.4(C) (not conveying that others can influence the judge).
Citations and references
Rules of Professional Conduct:
- Ohio Prof. Cond. R. 7.1 (false, misleading, or nonverifiable communications) (Model Rule 7.1)
- Ohio Prof. Cond. R. 7.5 (firm names and professional designations) (Model Rule 7.5)
- Ohio Prof. Cond. R. 5.7 (law-related services) (Model Rule 5.7)
- Ohio Prof. Cond. R. 8.4(a), (c), (e) (misconduct) (Model Rule 8.4)
Code of Judicial Conduct:
- Ohio Jud. Cond. R. 1.2 (promoting public confidence in the judiciary)
- Ohio Jud. Cond. R. 1.3 (avoiding abuse of the prestige of judicial office)
- Ohio Jud. Cond. R. 2.4(C) (not conveying that others can influence the judge)
Other opinions cited:
- Ohio BPC Op. 93-8 (1993): use of judicial titles by former judges returning to private practice
- ABA Formal Op. 95-391 (1995): use of judicial titles by former judges
- U.S. Jud. Conf., Comm. on Codes of Conduct, Op. No. 72 (2009): use of the title "Judge" by former judges
See also
- Ohio BPC Op. 1987-048: Judge's Name on a Former Law Firm's Letterhead
- Ohio BPC Op. 2011-003: Judge Endorsing a Candidate for Bar Association Office
- Ohio BPC Op. 2012-002: Identifying Nonlawyers on Letterhead, Websites, and Business Cards
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_13-003.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
Telephone: 614.387.9370
RICHARD A. DOVE Fax: 614.387.9379 MICHELLE A. HALL
SECRETARY www.supremecourt.ohio.gov SENIOR COUNSEL
OPINION 2013-3
Issued June 6, 2013
NOT CURRENT: See subsequent amendments to Prof. Cond.
R. 8.2, effective June 1, 2014
Use of Judicial Titles by Former Judges
SYLLABUS: Former judges may not use judicial titles while practicing law,
engaging in law-related or other business activities, working in government or
other public sector positions, or providing charity or community services. Former
judges serving as retired assigned, acting, and private judges may use judicial titles
in case-related entries, orders, decisions, and correspondence. Former judges are
permitted to describe past judicial service and experience in communications such
as biographical sketches, resumes, and curricula vitae. This opinion only applies to
the affirmative use of judicial titles by former judges, and not the honorific use of
judicial titles by others. Judges subject to the Code of Judicial Conduct, however,
must make reasonable efforts to ensure that former judges involved in proceedings
as lawyers, parties, or witnesses are not addressed by judicial titles in the
proceedings.
QUESTION PRESENTED: Is it appropriate for former judges to use judicial titles
after leaving the bench?
APPLICABLE RULES: Rules 5.7, 7.1, 7.5, and 8.4 of the Ohio Rules of
Professional Conduct; Rules 1.2, 1.3, and 2.4 of the Code of Judicial Conduct
OPINION:
Introduction
“We need education in the obvious more than investigation of the obscure.” 1
- Oliver Wendell Holmes, Jr., former associate justice of the U.S. Supreme Court
1 Oliver Wendell Holmes, Jr., Law and the Court, in Collected Legal Papers 291, 292-93 (1920).
Op. 2013-3 2
The Board has been asked to evaluate whether the current Rules of
Professional Conduct permit former judges to use judicial titles after leaving the
bench. In Advisory Opinion 93-8, the Board determined that it is ‚improper…for
a former judge returning to private law practice to use statements as to prior
judicial positions held or titles such as ‘Judge,’ ‘Honorable,’ or ‘Former Judge’ on
letterheads or business cards in connection with the practice of law.‛ Ohio Sup.
Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 93-8 (Oct. 15, 1993), at
syllabus. Opinion 93-8 addresses the use of judicial titles under the Code of
Professional Responsibility, which the Supreme Court of Ohio repealed effective
February 1, 2007. The Board relied upon DR 2-102(A)(1) (prohibiting public
communications containing false, misleading, deceptive, self-laudatory, or unfair
statements) and DR 9-101(C) (prohibiting statements or implications that a
lawyer is able to improperly influence a tribunal, legislative body, or public
official) to find that a former judge should not use judicial titles while engaged in
the private practice of law.
In Advisory Opinion 93-8, the Board only considered the use of judicial
titles by former judges upon return to the ‚private‛ practice of law. This opinion
will address former judges’ use of judicial titles in a variety of contexts, including
while engaged in the practice of law in any setting, in the provision of law-
related or other business services, and when serving as a retired assigned, acting,
or private judge. We will not discuss the use of judicial titles in judicial
campaigns, which is governed by specific provisions found in Jud.Cond.R. 4.3
(see also Jud.Cond.R. 4.3, Comment [3]). For purposes of this opinion, a judicial
title consists of the words ‚judge‛ or ‚honorable‛ appearing prior to a name
regardless of whether ‚judge‛ or ‚honorable‛ is capitalized or accompanied by
modifiers such as ‚former‛ or ‚retired.‛ Stated another way, ‚judicial title‛
includes, but is not limited to, the following: ‚Judge X,‛ ‚Honorable X,‛‛Hon.
X,‛ ‛Former Judge X,‛ ‚Retired Judge X,‛ and ‚Judge X (Ret.).‛2
‚Once a Judge, Always a Judge‛
The typical justification provided when a former judge refers to himself or
herself using a judicial title is the adage ‚once a judge, always a judge.‛ This
adage is referenced in social etiquette rules, usually on questions regarding the
proper title to be used in correspondence or introductions. The reliance on ‚once
2The Code of Judicial Conduct defines ‚judge‛ as a ‚lawyer who is authorized to perform judicial functions
within a court, including an officer such as a magistrate, court commissioner, or special master.‛ Code,
Application(I)(B). Accordingly, a ‚judicial title‛ would also include ‚Justice‛ and ‚Magistrate.‛
Op. 2013-3 3
a judge, always a judge,‛ however, is misplaced in modern American legal and
judicial ethics. The adage is actually a restatement of the long-standing
convention that British judges are generally not permitted to return to the
practice of law. See Follansbee, The English Lawyer of To-Day, 10 Am. Law. 8, 12-
13 (1902); Judiciary of England and Wales, Becoming a Judge, http://www.judiciary.gov.uk
(accessed May 14, 2013).
In Ohio, former judges are not prohibited from returning to the practice of
law. Even in the federal judiciary, where judicial appointments are regarded as
lifetime appointments,3 the ‚once a judge, always a judge‛ adage does not carry
the day. Noting that ‚federal judges *are+ returning to the practice of law in
increasing numbers,‛ the U.S. Judicial Conference issued an advisory opinion
captioned ‚Use of Title ‘Judge’ by Former Judges.‛ U.S. Jud. Conf., Commt. on
Codes of Conduct, Op. No. 72 (June 2009) at 1. Relying on Canon 2A of the Code
of Conduct for U.S. Judges (promoting public confidence in the integrity and
impartiality of the judiciary), the Conference’s Committee on Codes of Conduct
concluded that sitting judges ‚should ensure that the title ‘judge’ is not used in
the courtroom or in papers involved in litigation before them to designate a
former judge, unless the designation is necessary to accurately describe a
person’s status at a time pertinent to the lawsuit.‛ Id. ‚Once a judge, always a
judge,‛ has no basis in the rules of legal or judicial ethics. Rather than rely on
common law parlance, in this opinion we will scrutinize former judges’ use of
judicial titles under the guidance of the Rules of Professional Conduct (Rules)
and the Code of Judicial Conduct (Code).
Returning to the Practice of Law
The analysis of whether a former judge may use a judicial title while
engaged in the practice of law begins with Prof.Cond.R. 7.5, which states that
‚*a+ lawyer shall not use a firm name, letterhead, or other professional
designation that violates Rule 7.1.‛ Prof.Cond.R. 7.1 governs all communications
concerning a lawyer’s services:
A lawyer shall not make or use a false, misleading, or
nonverifiable communication about the lawyer or the
lawyer’s services. A communication is false or
misleading if it contains a material misrepresentation
3 Federal judges ‚hold their offices during good behavior.‛ U.S. Constitution, Article III, Section 1.
Op. 2013-3 4
of fact or law or omits a fact necessary to make the
statement considered as a whole not materially
misleading.
In addition, it is professional misconduct for a lawyer to violate the Rules or
‚engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.‛
Prof.Cond.R. 8.4 (a) and (c). It is also professional misconduct to ‚state or imply
an ability to influence improperly a government agency or official.‛ Prof.Cond.R.
8.4(e).
When a lawyer leaves judicial office, regardless of the reason, and returns
to the practice of law, the lawyer is no longer a judge. The lawyer does not hold
a judicial commission from the governor or perform judicial functions, and is not
paid a judicial salary or subject to the Code. A lawyer’s use of a judicial title is a
‚professional designation‛ for purposes of Prof.Cond.R. 7.5, and therefore
subject to the prohibition against false or misleading communications contained
in Prof.Cond.R. 7.1. The Board remains of the opinion that a lawyer who
formerly served as a judge should not use a judicial title while engaged in the
practice of law. Such use of a judicial title is false and misleading in violation of
Prof.Cond.R. 7.1 and constitutes conduct involving dishonesty, fraud, deceit, or
misrepresentation under Prof.Cond.R. 8.4(c). Identifying oneself as a judge in
the practice of law further implies to clients and the public an ability to influence
the courts and other public entities or officials, which is prohibited by
Prof.Cond.R. 8.4(e).
The Board stands by its position in Advisory Opinion 93-8 that a former
judge’s use of a judicial title in the practice of law ‚creates+ the appearance that
an attorney can use the prestige of past judicial experience to assure a client’s
success‛ and ‚falsely indicates to clients and others that a former judge has
influence over others to achieve desired ends or favorable treatment for the
client.‛ Unlike in Opinion 93-8, the Board does not limit this conclusion to the
‚private‛ practice of law. Lawyers practice law in a variety of environments, not
just private firms, and the Board‘s present view is that a former judge who uses a
judicial title in any legal practice setting violates Prof.Cond.R. 7.1, 7.5, 8.4(a),
8.4(c), and 8.4(e). Accord Am. Bar Assn. Commt. on Ethics and Prof’l
Responsibility, Formal Op. 95-391 (Apr. 24, 1995); Fla. Bar, Standing Commt. on
Advertising, Op. A-09-1 (June 25, 2009). As artfully stated by an assistant ethics
counsel for the American Bar Association, ‚t+he use of honorific titles by ex-
judges in the practice of law causes professional and ethical problems. Judicial
Op. 2013-3 5
titles are not portable. They stay with the position, not the individual. Former
judges must gracefully relinquish the prestige of judicial office when they step
down to return to practice before the bench rather than behind it.‛ Pitulla,
Trading on Titles, 6 No. 4 Prof. Law. 14, 15 (1995).
Providing Law-Related Services in Conjunction with the Practice of Law
After leaving the bench, former judges may engage in a variety of law-
related services, either in conjunction with a law practice or in separate
endeavors. Prof.Cond.R. 5.7 indicates when a lawyer is subject to the Rules in
the provision of law-related services and states in pertinent part as follows:
(a) A lawyer shall be subject to the Ohio Rules of
Professional Conduct with respect to the provision of
law-related services, as defined in division (e) of this
rule, if the law-related services are provided in either
of the following circumstances:
(1) by the lawyer in circumstances that are not
distinct from the lawyer’s provision of legal services
to clients;
(2) in other circumstances by an entity controlled or
owned by the lawyer individually or with others,
unless the lawyer takes reasonable measures to
ensure that a person obtaining the law-related
services knows that the services are not legal services
and that the protections of the client-lawyer
relationship do not exist.
Prof.Cond.R. 5.7(e) defines ‚law-related services‛ as ‚services that might
reasonably be performed in conjunction with the provision of legal services and
that are not prohibited as unauthorized practice of law when provided by a
nonlawyer.‛ Examples of law-related services include ‚providing title insurance,
financial planning, accounting, trust services, real estate counseling, legislative
lobbying, economic analysis, social work, psychological counseling, tax
preparation, and patent, medical, or environmental consulting.‛ Prof.Cond.R.
5.7, Comment [9]. Acting as a third-party neutral, such as a mediator or
Op. 2013-3 6
arbitrator, is another example of a law-related service. See Prof.Cond.R. 2.4 and
Comments [1]-[5].
If it is not possible to differentiate a former judge’s law-related business
from his or her law practice, Prof.Cond.R. 5.7(a)(1) dictates that all of the Rules
apply to the provision of law-related services. In the alternative, a former judge
may operate a law-related business while maintaining a separate law practice, or
the former judge could leave the practice of law and engage solely in a law-
related business. In these situations, the Rules will apply unless the former judge
advises the recipient of the law-related services that the services are not legal
services and the protections associated with the client-lawyer relationship are not
operative. Prof.Cond.R. 5.7(a)(2). ‚The promotion of the law-related services
must also in all respects comply with Rules 7.1 to 7.3, dealing with advertising
and solicitation.‛ Prof.Cond.R. 5.7, Comment [10].
When Prof.Cond.R. 5.7 indicates that the Rules apply to a former judge’s
law-related business, the propriety of using judicial titles in conjunction with the
law-related business follows the same analysis as in the use of judicial titles upon
return to the practice of law. Like a former judge’s use of judicial titles in the
practice of law, the use of such titles in a law-related business is false and
misleading under Prof.Cond.R. 7.1, constitutes conduct involving dishonesty,
fraud, deceit, or misrepresentation in violation of Prof.Cond.R. 8.4(c), and
implies an ability to influence the courts and other public entities or officials as
prohibited by Prof.Cond.R. 8.4(e).
Providing Law-Related Services Distinct from the Practice of Law; Engaging in Other
Business, Employment, or Non-Profit Activities
Again, under Prof.Cond.R. 5.7, the Rules do not apply to the provision of
law-related services when the services are administered separately from the
practice of law and the lawyer advises the recipient of services about the
nonlegal nature of the services and the lack of a client-lawyer relationship. Even
in these circumstances, ‚the conduct of a lawyer involved in the provision of
law-related services is subject to those rules that apply generally to lawyer
conduct, regardless of whether the conduct involves the provision of legal
services. See, e.g., Rule 8.4.‛ Prof.Cond.R. 5.7, Comment [2]. Prof.Cond.R. 8.4 ‚is
not limited to the lawyer-client relationship; it reaches conduct outside the
practice of law.‛ Bennett, Cohen & Whittaker, Annotated Model Rules of
Professional Conduct, 606, 613 (7th Ed. 2011). See also Rules, Preamble at [3]; Am.
Op. 2013-3 7
Bar Assn. Commt. on Ethics and Prof’l Responsibility, Formal Op. 336 (June 3,
1974); Disciplinary Counsel v. Carroll, 106 Ohio St.3d 84, 2005-Ohio-3805 (lawyer
disciplined for conduct that occurred while working in a nonlegal position for a
state agency). Accordingly, a former judge using a judicial title is subject to
Prof.Cond.R. 8.4 regardless of whether the former judge uses the title in a law-
related business or other for-profit venture. The reach of Prof.Cond.R. 8.4
likewise extends to a former judge’s nonlegal or non-law-related work in the
government or public sector and activities associated with charity or community
groups.
Whether a former judge identifies himself or herself using a judicial title in
a law-related business operated separately from a law practice, another for-profit
business, a government or other public sector position, or in charity or
community work, we are unable to envision a scenario in which the title would
not violate Prof.Cond.R. 8.4(c) or (e). To state it simply, a former judge is not a
judge. Judges are elected or appointed to a public office, occupy that office for a
period of time, and then vacate the office either voluntarily or involuntarily.
Because a former judge no longer holds office, a judicial title is not needed for
identification purposes. Invariably, the use of a judicial title outside of judicial
service is for personal gain or advantage or to create a benefit or recognition for
another. Lawyers should ‚demonstrate respect for the legal system‛ and
‚further the public’s understanding of and confidence in the rule of law and the
justice system.‛ Rules, Preamble, at 5+ and 6+. Continued use of judicial titles
by former judges is not consistent with these overarching ideals. The Board is of
the opinion that under Prof.Cond.R. 8.4(c) and (e), a former judge is prohibited
from using judicial titles in the provision of law-related or other businesses that
are distinct from the practice of law, government or other public sector work,
and in charity or community service activities.
Retired Judges Subject to Recall for Service (Retired Assigned Judges or ‚RAJs‛)
Some former judges function as a ‚retired judge subject to recall for
service‛ after leaving the bench. Otherwise known as ‚retired assigned judges‛
or ‚RAJs,‛ these former judges serve temporarily on a court upon designation by
the chief justice of the Supreme Court of Ohio. See Ohio Constitution, Article IV,
Section 6(C); R.C. 141.16. A former judge is eligible for assignment if he or she
falls within the definition of a ‚retired judge‛ in the Guidelines for Assignment
of Judges (Guidelines), which is ‚a person who left service on any court of the
state either voluntarily by reason of resignation or retirement or involuntarily by
Op. 2013-3 8
reason of Article IV, Section 6(C) of the Ohio Constitution *age+.‛4 Guidelines at
1.1(D). RAJs must abide by the Code except for the standard restrictions on
fiduciary positions and service as an arbitrator or mediator. See Code,
Application(II); Guidelines at 3.2(F); Ohio Sup. Ct., Bd. of Comm’rs on
Grievances and Discipline, Op. 2005-8 (Aug. 5, 2005). Being subject to the Code,
RAJs may not practice law and have a limited ability to engage in financial,
business, or remunerative activities. See Jud.Cond.R. 3.10 and 3.11. They may
only be associated with a law-related or other business if the limitations in
Jud.Cond.R. 3.11 are met:
(B) A judge shall not serve as an officer, director,
manager, general partner, advisor, or employee of or
independent contractor for any business entity except
that a judge may do any of the following:
(1) Manage or participate in a business closely held
by the judge or members of the judge’s family;
(2) Manage or participate in a business entity
primarily engaged in investment of the financial
resources of the judge or members of the judge’s
family;
(3) Write or teach.
An RAJ may serve as an arbitrator or mediator, but to comply with Jud.Cond.R.
3.11, could only serve as an officer, director, manager, general partner, advisor,
or employee of, or independent contractor for, an arbitration or mediation
business if the business is closely held by the RAJ or the RAJ’s family members.5
Because an RAJ is appointed by the chief justice to perform judicial duties,
compensated for judicial assignments, subject to the Code, and cannot practice
law, the Board concludes that an RAJ may use a judicial title within the context
4 ‚’Retired judge’ does not include a person who was removed or suspended without reinstatement from
service on any court of the state pursuant to the Rules for the Government of the Judiciary or resigned or
retired from service on any court of the state while a complaint was pending against the person under those
rules.‛ Guidelines at 1.1(D).
5 The Board notes that the Internal Revenue Service treats a sole proprietor as a business owner. See Internal
Revenue Service, Sole Proprietorships, http://www.irs.gov/Businesses/Small-Businesses-&-Self-
Employed/Sole-Proprietorships (accessed May 14, 2013).
Op. 2013-3 9
of judicial assignments. Additionally, counsel and litigants must be able to
identify the decision-maker in a case involving an RAJ, which would be difficult
to do without a judicial title accompanying the RAJ’s name. For these reasons,
the Board finds that RAJs may employ judicial titles on entries, orders, decisions,
case-related correspondence, and letterhead that is used solely for case
assignment matters.
From time to time, the chief justice has assigned a former judge, who is
not otherwise eligible for assignment to active duty under the Guidelines, to a
court for the limited purpose of solemnizing a marriage. See generally R.C.
3101.08. Similar to an RAJ’s use of a judicial title in case assignments, a former
judge assigned to a court to solemnize a marriage would only be permitted to
use a judicial title in direct connection with the marriage solemnization.
Regarding closely-held business activities permitted by Jud.Cond.R.
3.11(B)(1) or (B)(2), the Board’s opinion is that the Code prohibits RAJs from
using judicial titles in conjunction with such activities. Jud.Cond.R. 1.3 states
that ‚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.‛
Jud.Cond.R. 1.3, Comment [1], explains that ‚i+t is improper for a judge to use or
attempt to use his or her position to gain personal advantage or deferential
treatment of any kind.‛ Comment *1+ further states that ‚a judge must not use
judicial letterhead to gain an advantage in conducting his or her personal
business.‛ When an RAJ identifies himself or herself by a judicial title within a
business, the title is being employed to gain a competitive or marketing
advantage. The Board believes this is an abuse of the prestige of judicial office
bestowed on the assigned judge through appointment of the chief justice.
The Board recognizes that an RAJ may serve as an arbitrator or mediator
through a closely-held business permitted by Jud.Cond.R. 3.11. The Board also
acknowledges that judicial experience is clearly relevant to the provision of
alternative dispute resolution services. However, the abuse of office prohibition
contained in Jud.Cond.R. 1.3 applies to all of an RAJ’s business activities. The
issue is the abuse of the office for personal advantage, not whether the business
involves ‚judge-like‛ services such as arbitration or mediation. Whether an RAJ
provides law-related services such as arbitration and mediation, or services
completely unrelated to the law, the RAJ must not identify or market himself or
herself using a judicial title.
Op. 2013-3 10
Jud.Cond.R. 3.11 permits RAJs to write and teach, which could occur in
the context of both for-profit and non-profit enterprises. There may be situations
in which it is appropriate for an RAJ to use a judicial title when writing or
teaching. As stated in Jud.Cond.R. 1.3, Comment [4]:
Special considerations arise when judges write or
contribute to publications of for-profit entities. A
judge should not permit anyone associated with the
publication of such materials to exploit the judge’s
office in a manner that violates this rule or other
applicable law. A judge who writes or contributes to a
publication does not violate this rule by allowing his
or her title and judicial experience to be used as a
means of identification or to demonstrate an expertise
in the subject-matter of the publication.
If an RAJ uses a judicial title in the context of writing or teaching, the title must
not be traded upon to generate profit, sales, or exposure for the publisher,
sponsor, or the RAJ. As with closely-held business activities, an RAJ may not use
a judicial title when writing or teaching to gain a personal or competitive
advantage for the RAJ or other persons or entities.
Acting Judges and Private Judges
Municipal court judges in single-judge courts may appoint a substitute to
serve during the ‚absence, incapacity, or unavailability‛ of the judge or to cover
vacation periods. R.C. 1901.10(A)(2); 1901.12. County court judges may appoint
substitutes if the judge is ‚temporarily absent, incapacitated, or otherwise
unavailable.‛ R.C. 1907.14. These appointed substitutes have the ‚jurisdiction
and powers‛ of the court and ‚shall be styled ‘acting judge’.‛ R.C. 1901.10(A)(2);
1907.14.
Acting judges are subject to the Code, although they are exempt from a
number of specific rules. Code, Application(V). Acting judges are permitted to
practice law, so an acting judge may not serve as an RAJ. Code, Application(I)
and (V). Despite the ability to practice law and an exclusion from a number of
Code provisions, acting judges must comply with the prohibition against
abusing the prestige of judicial office found in Jud.Cond.R. 1.3. Acting judges
may be either lawyers or lawyers who are former judges.
Op. 2013-3 11
Because acting judges have the ‚jurisdiction and powers‛ of the court
while serving as an acting judge pursuant to appointment, it is appropriate for
acting judges to employ a judicial title on entries, orders, decisions, and case-
related correspondence. To comply with R.C. 1901.10(A)(2) and 1907.14, the title
should be ‚Acting Judge.‛ Outside of acting judge responsibilities, whether a
lawyer or a former judge, the ‚Acting Judge‛ title should not be used in the
practice of law, law-related or other businesses, government or public sector
work, or charity and community activities. In these contexts, use of the title
would constitute an abuse of the prestige of office in violation of Jud.Cond.R. 1.3.
Acting judges must also comply with the Rules, and use of judicial titles outside
of acting judge duties would be false and misleading under Prof.Cond.R. 7.1,
constitute conduct involving dishonesty, fraud, deceit, or misrepresentation in
violation of Prof.Cond.R. 8.4(c), and imply an ability to influence the courts and
other public entities or officials as prohibited by Prof.Cond.R. 8.4(e).
In contrast to an acting judge, a private judge is a retired judge who
registers with the clerk of a common pleas, municipal, or county court to receive
referrals for adjudications of civil actions or proceedings and submissions for
determination of specific issues or questions of fact or law in any pending civil
action or proceeding. R.C. 2701.10. Upon referral of a matter, the private judge
‚shall have all of the powers, duties, and authority of an active judge in which
the action or proceeding is pending.‛ R.C. 2701.10(C). If a former judge’s
workload allows, he or she may act as both a private judge and an RAJ. See
Guidelines at 3.2(F).
Because private judges have ‚all of the powers, duties, and authority of an
active judge,‛ a private judge may use a judicial title on entries, orders, decisions,
and case-related correspondence. A private judge who serves as an RAJ is
subject to the Code of Judicial Conduct, which will govern the use of judicial
titles in activities outside of private judging. Former judges who work both as a
private judge and an RAJ should consult our previous discussion of an RAJ’s use
of judicial titles. A former judge who serves solely as a private judge is not
subject to the Code, and his or her use of judicial titles would be scrutinized
under the Rules, also as previously discussed in this opinion.
Op. 2013-3 12
Factual Statements about Prior Judicial Service
Although the Board has identified limited situations in which it is
appropriate for a former judge to use a judicial title, the Board believes that
former judges should be able to reference and describe their judicial service and
experience. As the Board determined in Opinion 93-8, a former judge may use
factual statements about prior judicial service in ‚professional announcement
cards or law directory listings.‛ The Board previously limited judicial
experience descriptions to announcement cards and directory listings because
they ‚are generally not used in corresponding with clients and others regarding
legal matters, but rather are used to announce changes and disseminate factual
information to the profession.‛ Advisory Opinion 93-8 at 3. Announcement
cards and directories were also specifically referenced in the prior Code of
Professional Responsibility. See DR 2-102 (Professional Notices, Letterheads, and
Offices). Given the departure in the Rules from the Code’s ‚laundry list‛ of
cards, letterheads, signs, and the like,6 the Board now takes a more expansive
view of a former judge’s ability to refer to judicial service. Subject to the
applicable Rule and Code provisions already considered in this opinion, former
judges may include truthful and factual statements describing prior judicial
positions in a variety of communications including biographical sketches,
resumes, and curricula vitae. In such communications, a former judge may
identify oneself as a former judge, so long as this is done with a description
following the name that is not in the form of a judicial title.
Judicial Title Used as an Honorific by Others
As a final point, the Board appreciates that former judges are often
addressed as ‚Judge‛ by others due to habit, customs of etiquette, or a prior
relationship. The focus of this Advisory Opinion is the affirmative use of judicial
titles by former judges. It should not be interpreted to mean that a former judge
has violated the Rules or Code if referred to as ‚Judge‛ by a lawyer, friend,
acquaintance, or stranger. Former judges should not require, insist on, or
encourage such practice, but the unsolicited use of the honorific ‚Judge‛ or other
judicial title by another does not constitute misconduct by the former judge.
If the person referring to another as ‚Judge‛ is a judge subject to the Code,
though, and the judicial title is used in a proceeding before the judge,
6See Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline, Op. 2012-2 (June 8, 2012) (Identification
of Nonlawyers on Law Firm Letterhead, Websites, and Business Cards).
Op. 2013-3 13
Jud.Cond.R. 2.4(C) will apply. That rule prohibits a judge from ‚convey*ing+ or
permit[ting] others to convey the impression that any person is in a position to
influence the judge.‛ A judge must further ‚act at all times in a manner that
promotes public confidence in the independence, integrity, and impartiality of
the judiciary, and shall avoid impropriety and the appearance of impropriety.‛
Jud.Cond.R. 1.2. Former judges may appear before current judges as lawyers,
parties, or witnesses. When the presiding judge addresses a lawyer, party, or
witness as ‚Judge,‛ roles are confused, there is a perceived bias in favor of that
individual, and the judge’s ability to be fair and impartial is called into question.
Reading Jud.Cond.R. 1.2 and 2.4(C) together, judges should not, in proceedings
before them, refer to former judges using judicial titles. Moreover, judges must
make reasonable efforts to ensure that court staff, lawyers, litigants, and
witnesses do not address former judges by judicial titles in court proceedings.
Accord U.S. Jud. Conf., Commt. Code Conduct, Op. No. 72 (June 2009).
CONCLUSION:
The adage ‚once a judge, always a judge,‛ has no basis in the Rules of
Professional Conduct or the Code of Judicial Conduct. In general, a former judge
should not refer to himself or herself using a judicial title that consists of the
words ‚judge‛ or ‚honorable‛ appearing prior to their name regardless of
whether ‚judge‛ or ‚honorable‛ is capitalized or accompanied by modifiers such
as ‚former‛ or ‚retired.‛ A former judge’s use of a judicial title when engaging in
the practice of law violates Prof.Cond.R. 7.1, 7.5, and 8.4(a), (c), and (e). If a
former judge provides law-related services and Prof.Cond.R. 5.7 dictates that the
Rules of Professional Conduct apply, the use of a judicial title in the law-related
business also violates Prof.Cond.R. 7.1, 7.5, and 8.4(a), (c), and (e). In all other
settings, including business, government or other public sector entities, and
charity or community groups, a former judge must still comply with
Prof.Cond.R. 8.4, and refrain from using judicial titles.
Former judges serving as retired assigned, acting, or private judges have
judicial authority in designated cases and must be able to identify themselves as
the decision-maker in these cases. Thus, they may use judicial titles in case-
related entries, orders, decisions, and correspondence. Retired assigned judges
and acting judges must comply with the abuse of office prohibition contained in
Jud.Cond.R. 1.3, and therefore should not use judicial titles in the provision of
law-related or other business services, including arbitration and mediation.
Op. 2013-3 14
Former judges serving solely as private judges are bound by Prof.Cond.R. 8.4,
and should not use judicial titles outside of private judging cases.
It is appropriate for a former judge to use factual descriptions of prior
judicial service and experience in communications such as biographical sketches,
resumes, and curricula vitae. Additionally, a former judge has not committed
misconduct if another person addresses the former judge by a judicial title,
provided that the former judge does not require, insist on, or encourage such
practice. Under Jud.Cond.R. 1.2 and 2.4(C), judges must make reasonable efforts
to ensure that former judges involved in proceedings as lawyers, parties, or
witnesses are not referred to by judicial titles in the proceedings.
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.
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