Can a former magistrate who is now a private lawyer represent a party in a post-decree matter from a divorce the magistrate handled?

Plain-English summary

The Board considered whether a former magistrate, now in private practice, may represent a person in post-decree matters (such as modifying child custody, parenting time, or support, or pursuing or defending a contempt motion) arising from a divorce or dissolution in which the lawyer served as magistrate. The Board addressed both the Rules of Professional Conduct and Ohio Ethics Law, and withdrew Adv. Op. 2005-05.

Under Prof.Cond.R. 1.12(a), a lawyer may not represent anyone in a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, which the comment confirms includes magistrates, unless all parties give informed consent confirmed in writing. The Board, following Disciplinary Counsel v. Christ, concluded that a magistrate who served in the original divorce or dissolution acted on the merits even if involvement was limited to signing agreed entries, and that subsequent post-decree matters are the "same matter" for purposes of Rule 1.12. The former magistrate must therefore obtain informed written consent from all parties to represent a party in that proceeding.

Separately, Ohio Ethics Law imposes an absolute bar: under R.C. 102.03(A)(1), a former public official may not represent a client for twelve months after public employment on any matter in which the official personally participated through decision, approval, disapproval, recommendation, advice, investigation, or other substantial exercise of administrative discretion. If the magistrate had any such personal participation, the representation is prohibited for twelve months regardless of whether the parties consent.

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as they stood at the time, a former magistrate may not represent a person in post-decree matters arising from a divorce or dissolution the magistrate handled without informed consent from all parties, confirmed in writing, because those matters are the same matter under Prof.Cond.R. 1.12. Per the opinion, Ohio Ethics Law (R.C. 102.03(A)(1)) separately bars the representation for twelve months after the magistrate's public employment where the magistrate personally participated, and that statutory bar applies regardless of party consent.

Common questions

Q: Are post-decree matters the "same matter" as the original divorce for conflict purposes?

A: Yes. The opinion concludes that post-decree matters such as custody, parenting-time, support modifications, and contempt motions are the same matter as the original divorce or dissolution under Prof.Cond.R. 1.12.

Q: Can all parties' written consent let a former magistrate take the case?

A: The opinion concludes consent satisfies Prof.Cond.R. 1.12, but Ohio Ethics Law (R.C. 102.03) still bars the representation for twelve months after employment where the magistrate personally participated, regardless of consent.

Q: Does it matter that the magistrate only signed agreed entries?

A: The opinion concludes it does not; following Disciplinary Counsel v. Christ, a magistrate who signed agreed entries in the original action acted on the merits.

Background and rules framework

The opinion interprets Ohio Prof.Cond.R. 1.12 (former judge, arbitrator, mediator, or other adjudicative officer; the comment defines "adjudicative officer" to include magistrates; Model Rule 1.12) and applies Ohio Ethics Law, R.C. 102.03(A)(1), which imposes a twelve-month post-employment representation bar for matters of personal participation.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.12(a) and cmt. [1] (Model Rule 1.12)

Statutes:

• R.C. 102.03(A)(1) (twelve-month post-employment representation bar)

Cases:

• Disciplinary Counsel v. Christ, 74 Ohio St.3d 308 (1996), former judge representing a party to a divorce he had decided

Other opinions cited:

• Ohio BPC Adv. Op. 2005-05: former magistrate representing a party in a post-decree matter (withdrawn by this opinion)

See also

• Ohio BPC Op. 2005-005: Former Magistrate Representing a Party in a Post-Decree Matter (withdrawn by this opinion)
• Ohio BPC Op. 1993-008: Former Judge Using Judicial Titles in Private Practice
• Ohio BPC Op. 2019-005: Part-Time Law Director Conflicts and Imputation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2019/10/Adv-Op-2019-11-Final.pdf

Original opinion text

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

OPINION 2019-11
Issued October 4, 2019
Withdraws Adv. Op. 2005-5

Representation by Former Magistrate of Parties in Post-Decree Matters

SYLLABUS: Absent informed consent, confirmed in writing, a former magistrate, now practicing law, is prohibited from representing 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 a magistrate in the person’s original divorce or dissolution action. As a matter of law, and regardless of the presence of informed consent, if the former magistrate personally participated in the matter through decision, approval, disapproval, recommendation, the rendering of advice, investigation or other substantial exercise of administrative discretion, the former magistrate is prohibited from representing the person for twelve months after his or her public employment.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in response to a prospective or hypothetical question regarding the application of ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely responsible for the content of this advisory opinion, and the advice contained in this opinion does not reflect and should not be construed as reflecting the opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio Board of Professional Conduct. 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 Telephone: 614.387.9370 Fax: 614.387.9379 www.bpc.ohio.gov

HON. JOHN W. WISE
RICHARD A. DOVE
CHAIR
DIRECTOR
PATRICIA A. WISE
D. ALLAN ASBURY
VICE- CHAIR
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2019-11
Issued October 4, 2019
Withdraws Adv. Op. 2005-5

Representation by Former Magistrate of Parties in Post-Decree Matters

SYLLABUS: Absent informed consent, confirmed in writing, a former magistrate, now practicing law, is prohibited from representing 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 a magistrate in the person’s original divorce or dissolution action. As a matter of law, and regardless of the presence of informed consent, if the former magistrate personally participated in the matter through decision, approval, disapproval, recommendation, the rendering of advice, investigation or other substantial exercise of administrative discretion, the former magistrate is prohibited from representing the person for twelve months after his or her public employment.

QUESTION PRESENTED: May a former magistrate, now practicing law, 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?

APPLICABLE RULES: Prof.Cond.R. 1.12.

OPINION: This opinion addresses the post-employment restrictions applicable to former magistrates under Ohio law.
Op. 2019-11
2

Ohio Rules of Professional Conduct

Prof.Cond.R. 1.12 limits the ability of a lawyer to accept representation in matters the lawyer participated in as a judge or adjudicative officer. A lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer unless all the parties to the proceeding give informed consent, confirmed in writing. Prof.Cond.R. 1.12(a). The term “adjudicative officer” in the rule includes magistrates. Id., cmt. [1]. The use of the language “personally and substantially” indicates that a former judicial member of a multimember court who has left the bench is not prohibited from representing a client in a matter pending in the court, if the judicial member did not participate in the matter while on the bench. See id. Furthermore, if a judicial member previously exercised administrative responsibility in a court, the former judicial member is not prohibited from acting as a lawyer in a matter where the member exercised remote or incidental administrative responsibilities that did not affect the merits. See id.

The word “matter” is not defined in the Rules of Professional Conduct, but case law is instructive. In a case decided under the Ohio Code of Professional Responsibility, a former judge received a public reprimand when seven years after granting an uncontested divorce as a judge, he privately represented one of the parties to the divorce and filed a motion in the proceeding. Disciplinary Counsel v. Christ, (1996), 74 Ohio St.3d

308. The former judge explained at the disciplinary hearing that his involvement in the
     uncontested divorce was limited to signing the final judgment entry which he considered to be perfunctory and insufficient to bar his subsequent private employment. Id. at 309. The Court however, disagreed and found him to be in violation of the prior disciplinary rule. Id.

     Consistent with the Supreme Court’s decision in Christ, the Board’s view is that a
     person who served as a judge or magistrate in the original divorce or dissolution action has acted upon the merits in his or her official capacity, even if the involvement was limited to signing agreed upon entries. The Board concludes that 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 Prof.Cond.R. 1.12. Thus, the former magistrate must obtain informed consent, confirmed in writing, from all parties to the proceeding to subsequently represent a party in that proceeding.
     Op. 2019-11 3

Ohio Ethics Law

The Ohio Ethics Law contains additional limitations on a former magistrate’s practice of law. A former magistrate is prohibited from representing a client for twelve months following his or her public employment if he or she served as a magistrate in the client’s original divorce or dissolution action. R.C. §102.03(A)(1) states, “[n]o 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.” If the magistrate had any personal participation through the above listed actions, the magistrate is prohibited from accepting private representation of a client in the matter for twelve months after employment, regardless of whether the parties to the proceeding provide informed consent.

CONCLUSION: A former magistrate who leaves court employment and enters the private practice of law must consider both ethical and legal obligations. Former magistrates are subject to post-employment restrictions, both through the Rules of Professional Conduct and Ohio Ethics Law. The Board advises that a former magistrate, now practicing law, is prohibited for twelve months after employment from representing a person in post-decree matters when he or she served as magistrate in the person’s original divorce or dissolution action. Upon informed consent of all interested parties, confirmed in writing, a former magistrate may represent a client after serving as a magistrate in the person’s original divorce or dissolution action so long as twelve months have passed since his or her government employment.