Can a probate court magistrate also serve as an eldercare coordinator for the same court?

Plain-English summary

A probate judge proposed appointing two magistrates, on a case-by-case basis, to serve as eldercare coordinators (a form of dispute resolution in guardianship matters under Sup. R. 79(B)), with safeguards so a magistrate would not coordinate a case he or she presided over. The Board concluded a magistrate may not serve in that dual role in the same court.

Because magistrates perform judicial functions, they are subject to the Code of Judicial Conduct (Jud.Cond.R., Application I(B)). Under Jud.Cond.R. 3.9, a magistrate may not act as an arbitrator or mediator or perform other judicial functions apart from official duties unless expressly authorized by law, and the Board found no Ohio law expressly permitting a judicial officer to mediate or coordinate cases pending before another judicial officer. The Board also found that eldercare coordination is not among the functions a magistrate may perform under Civ.R. 53, distinguishing it from participating in a settlement conference or mediation in a case the magistrate presides over (Jud.Cond.R. 3.9, cmt. [1]).

Treating eldercare coordination as an extrajudicial activity, the Board concluded it would interfere with the magistrate's official duties and lead to the frequent disqualification that Jud.Cond.R. 3.1 prohibits, because the magistrate could not hear matters stemming from the coordination. The Board further concluded the dual role could cause a reasonable person to question the magistrate's independence, integrity, or impartiality under Jud.Cond.R. 3.1(C) and 1.2, particularly if the magistrate promoted the coordination program as an alternative to litigation (see also Jud.Cond.R. 2.6, cmt. [3]). Although part-time magistrates and judges are not bound by the Rule 3.9 prohibition, the Board advised that a full- or part-time magistrate should not serve as an eldercare coordinator in the same probate court in which the magistrate presides.

In practice

The opinion holds that, under the Ohio Code of Judicial Conduct as it stood at the time, a magistrate may not serve as an eldercare coordinator in the same court in which the magistrate is appointed. Per the opinion, eldercare coordination is an extrajudicial activity, not a judicial function authorized by Jud.Cond.R. 3.9 or Civ.R. 53, and it would interfere with the magistrate's principal duties and cause the frequent disqualification barred by Jud.Cond.R. 3.1. The opinion concludes the dual role would also raise reasonable questions about the magistrate's impartiality under Jud.Cond.R. 3.1(C) and 1.2, and this conclusion applies whether the magistrate serves full- or part-time.

Common questions

Q: Can a probate magistrate also be appointed an eldercare coordinator for the court?

A: The opinion concludes no, not in the same court; eldercare coordination is an extrajudicial activity that exceeds the functions permitted under Jud.Cond.R. 3.9 and Civ.R. 53.

Q: Why not, if the magistrate avoids coordinating his or her own cases?

A: The opinion concludes the arrangement would still create blanket disqualification in coordinated matters, interfere with the magistrate's official duties, and amount to the frequent disqualification Jud.Cond.R. 3.1 prohibits.

Q: Does it matter whether the magistrate is full-time or part-time?

A: The opinion concludes it does not; even though part-time magistrates are not subject to the Rule 3.9 mediation prohibition, the impartiality and interference concerns remain when the coordinator role is in the same court where the magistrate presides.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 3.9 (judge not to act as arbitrator or mediator apart from official duties unless authorized by law; ABA Model Code of Judicial Conduct Rule 3.9), Jud.Cond.R. 3.1 (extrajudicial activities, including the bar on activities leading to frequent disqualification or undermining impartiality; Model CJC Rule 3.1), Jud.Cond.R. 1.2 (promoting confidence in the judiciary; Model CJC Rule 1.2), and Jud.Cond.R. 2.6 (ensuring the right to be heard; Model CJC Rule 2.6). It also applies Civ.R. 53 and Sup. R. 79(B).

Citations and references

Rules of Professional Conduct:

• Ohio Jud.Cond.R. 3.9 and cmt. [1] (Model CJC Rule 3.9)
• Ohio Jud.Cond.R. 3.1, incl. 3.1(A), (C) (Model CJC Rule 3.1)
• Ohio Jud.Cond.R. 1.2; Jud.Cond.R. 2.6, cmt. [3]; Jud.Cond.R. 3.11
• Ohio Jud.Cond.R. 1.0 (definition of "law")

Statutes and court rules:

• Civ.R. 53 (powers of magistrates); Sup. R. 79(B) (eldercare coordination)
• R.C. 2921.43 (supplemental compensation of magistrates prohibited)

Cases:

• Cuyahoga County Bd. of Mental Retardation v. Assn. Cuyahoga County Teachers of Trainable Retarded, 47 Ohio App.2d 28, 351 N.E.2d 777 (8th Dist. 1975)

Other opinions cited:

• Nev. Std. Comm. Jud. Eth. Op. JE10-006 and NY Jud. Adv. Op. 06-64: judicial officers serving as mediators

See also

• Ohio BPC Op. 2019-011: Former Magistrate Representation in Post-Decree Matters
• Ohio BPC Op. 1986-002: Judge Teaching a University Class
• Ohio BPC Op. 1987-013: Judge Serving on a Governmental Task Force

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2019/10/Adv-Op-2019-12-Final.pdf

Original opinion text

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

OPINION 2019-12
Issued October 4, 2019

           Appointment of a Magistrate as an Eldercare Coordinator

SYLLABUS: A probate court magistrate may not be appointed as an eldercare
coordinator in addition to his or her duties as a judicial officer. The dual appointment of
a probate court magistrate as an eldercare coordinator interferes with the official duties
of the position of magistrate and leads to frequent disqualification. The dual
appointment of a probate court magistrate as an eldercare coordinator raises questions
as to the magistrate’s impartiality.

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 2019-12
                                  Issued October 4, 2019

              Appointment of a Magistrate as an Eldercare Coordinator

SYLLABUS: A probate court magistrate may not be appointed as an eldercare
coordinator in addition to his or her duties as a judicial officer. The dual appointment of
a probate court magistrate as an eldercare coordinator interferes with the official duties
of the position of magistrate and leads to frequent disqualification. The dual
appointment of a probate court magistrate as an eldercare coordinator raises questions
as to the magistrate’s impartiality.

QUESTION PRESENTED: Whether a probate magistrate may serve in a dual role as an
eldercare coordinator.

APPLICABLE RULES: Jud.Cond.R. 1.2, 2.6, 3.1, 3.9

OPINION: A probate court judge proposes that two magistrates be appointed on a
case-by-case basis to serve as eldercare coordinators for the court. Each magistrate would
be appointed only in cases not previously referred to them by the judge and would not
participate as an eldercare coordinator in any matter in which they presided as
magistrate. If a magistrate is appointed as an eldercare coordinator before a guardianship
proceeding is filed, that magistrate will not participate in any subsequent guardianship
proceedings involving the same ward.

   Eldercare coordination is a form of dispute resolution offered by some probate

courts in pending and impending guardianships when traditional mediation is not
Op. 2019-12 2

appropriate or has failed. See Sup. R. 79(B). The goal of eldercare coordination is to
complement other services, such as legal representation and mediation, and to “help
manage high-conflict family dynamics so that the elder, family and stakeholders can
address their non-legal issues independently from the court.”1 To this end, an eldercare
coordinator may help make decisions within the scope of a court order or with prior
approval of the parties. In most jurisdictions the eldercare coordinator is paid directly by
the parties for his or her services.2 An eldercare coordinator appointed by the court is
required to complete specialized training and must have adequate knowledge and
experience to assist the parties.

    Judicial functions of a magistrate

    Magistrates perform judicial functions and therefore are subject to the Code of

Judicial Conduct, Jud.Cond.R., Application, I(B). Magistrates may not act as arbitrators or
mediators or perform other judicial functions apart from their official duties unless
expressly authorized by law. Jud.Cond.R. 3.9. “Law” is a defined term that includes
court rules, the Code of Judicial Conduct, the Rules of Professional Conduct, statues,
constitutional provisions, and decisional law. Jud.Cond.R. 1.0. In some jurisdictions,
mediation by a judicial officer of cases before another judge is permitted under the Code
of Judicial Conduct because the activity is expressly authorized by other law. For
example, pursuant to a Nevada Supreme Court rule, parties and their attorneys may meet
in person “with a judge other than the judge assigned to preside over the trial” for
purposes of attempting to settle the case. Nev. Sup. Ct. Rule 252; Nev. Std. Comm. Jud.
Eth. Op. JE10-006. In Ohio there is no comparable law expressly permitting the mediation
by one judicial officer of another judicial officer’s cases that would qualify as an exception
to the prohibition in Jud.Cond.R. 3.9.

    In addition, a magistrate “appointed under Civil Rule 53 can be appointed only to

function in the manner authorized by Civil Rule 53." Cuyahoga County Bd. of Mental
Retardation v. Assn. Cuyahoga County Teachers of Trainable Retarded, 47 Ohio App. 2d 28,
39, 351 N.E.2d 777 (8th Dist.1975). Upon referral from a judge, a magistrate is permitted
under Civ.R. 53(C) to determine any motion in any case; conduct the trial of any case that

1 Fieldstone & Bronson, From Friction to Fireworks to Focus: Eldercaring Coordination Sheds Light in High-
Conflict Cases 24 Experience (2015).
2 Supplemental compensation of magistrates by third parties is prohibited by R.C. 2921.43 and

Jud.Cond.R. 3.11.
Op. 2019-12 3

will not be tried to a jury; preside over the trial of any case that will be tried to a jury;
conduct proceedings upon application for the issuance of a temporary protection order
as authorized by law; exercise any other authority specifically vested in magistrates by
statute and consistent with this rule. The enumerated list of permissible functions in Civ.
R. 53 does not include the referral of a matter to a magistrate for the purposes of dispute
resolution or eldercare coordination.

   In contrast, a magistrate is permitted to participate in a mediation or settlement

conference as a part of his or her assigned judicial duties in cases over which he or she is
presiding. Jud.Cond.R. 3.9, cmt. [1]. While eldercaring coordination is not considered a
formal mediation process, it is a form of dispute resolution involving parties in matters
pending or impending before the probate court. The functions of an eldercare
coordinator are far different from that of managing a settlement conference or mediating
a case over which the judicial officer presides. A magistrate’s appointment as an
eldercare coordinator, in addition to his or her official judicial duties, exceeds those
activities deemed permissible under Jud.Cond.R. 3.9 and Civ.R. 53.

   Eldercaring coordination as an extrajudicial activity

   A magistrate’s service as an eldercare coordinator for a court is considered an

extrajudicial activity because the coordinator seeks to resolve pending or impending
issues of parties independently from the court. While judicial officers may permissibly
participate in certain permissible extrajudicial activities, they may not engage in
extrajudicial activities that will lead to frequent disqualification or interfere with their
judicial duties. Jud.Cond.R. 3.1. For example, the proposed appointment of each
magistrate as an eldercare coordinator contemplates that the magistrate will not hear any
matter stemming from his or her participation as a coordinator. This arrangement
constitutes a blanket disqualification in all matters the magistrate serves as an eldercare
coordinator, interferes with the official duties of the position of magistrate, and
constitutes the type of frequent disqualification that the rule seeks to prevent. See e.g. NY
Jud. Adv. Op. 06-64 (should a judge’s service as a mediator result in frequent recusal, the
judge cannot continue to serve in that capacity.) In addition, time spent serving as an
eldercare coordinator will interfere with the magistrate’s ability to property perform his
or her official duties. Jud.Cond.R. 3.1(A).
Op. 2019-12 4

   Impartiality of the Magistrate

   A judicial officer may not participate in extrajudicial activities when it would

appear to a reasonable person to undermine the judicial officer’s independence, integrity,
or impartiality. Jud.Cond.R. 3.1(C), 1.2. Service in a dual role as both a judicial officer
and a coordinator in a dispute resolution process may raise questions from court
participants about the impartiality of the magistrate. For example, the parties may
question whether the magistrate will rule on matters in an impartial manner when
serving in both roles and when the overall objectives of the eldercare coordination
process may vary considerably from those present in litigation. Reasonable questions
may also be raised by parties about a magistrate’s ability to hear a matter on the merits,
especially if in the role of eldercare coordinator, the magistrate promotes the use of the
coordination program as a preferred alternative to further litigation. See also Jud.Cond.R.
2.6, cmt. [3] (a judge must be mindful of the effect settlement discussions can have * * *
on the appearance of their objectivity and impartiality.)

   Neither a parttime magistrate nor a parttime judge is subject to the prohibition

against participation as an arbitrator or mediator in Jud.Cond.R. 3.9. However, a part-
time magistrate position does not obviate all the issues stated above when the eldercare
coordinator position is performed in the same court or division where he or she presides.
For these reasons, the Board advises that a full or parttime magistrate not serve in a
capacity as an eldercare coordinator in the same probate court in which the magistrate
presides.

   CONCLUSION: A magistrate is a judicial officer subject to the Code of Judicial

Conduct. Like a judge, a magistrate’s extrajudicial duties are subject to the restrictions set
forth in the Code. A judicial officer is not permitted to engage in mediation or arbitration
in cases in which he or she does not preside unless expressly authorized by law. There is
no law in Ohio that permits a judicial officer to participate in mediation apart from those
cases over which he or she presides. A magistrate’s appointment as an eldercare
coordinator is an extrajudicial activity and not a judicial function. Under the Code,
extrajudicial activities cannot interfere with the judicial officer’s principal duties nor raise
questions about his or her impartiality. The dual appointment of a magistrate as an
eldercare coordinator may also interfere with the magistrate’s duties and likely raise
reasonable questions about the magistrate’s impartiality in guardianship cases.
Regardless of whether the magistrate serves in a full or part-time capacity, the Board
Op. 2019-12 5

advises that he or she not serve as an eldercare coordinator in the same court in which
they are appointed as magistrate.