Can an Ohio judge teach a course or give a speech, and accept pay or expense reimbursement for it?

Plain-English summary

The Board addressed whether a judge may teach a college or university course, teach a CLE, or give a motivational speech, and receive compensation and expense reimbursement for each. The Board concluded such activities are permissible under the Code of Judicial Conduct when time permits, when judicial independence, integrity, and impartiality are not compromised, and when the judge complies with all applicable provisions; the Code does not limit a judge to law-related topics.

The Board framed several conditions. A judge must give precedence to official duties (Jud.Cond.R. 2.1) and should decline an opportunity that would interfere with the regular performance of those duties or appear to consume significant time. Teaching or speaking must not appear to a reasonable person to undermine impartiality (Jud.Cond.R. 1.2); for example, a judge may teach a CLE on OVI and criminal domestic-violence laws and procedures, but should not teach how to defend an OVI case or how best to prosecute a domestic-violence case. A judge must avoid commenting on pending or impending matters in ways prohibited by Jud.Cond.R. 2.10, though the judge may speak generally about the law, the legal system, and the judge's role. A judge must also avoid activities leading to frequent disqualification (Jud.Cond.R. 3.1), as where a college that employs the judge regularly appears in the judge's court.

On compensation for teaching, the Board concluded a judge may be paid for teaching a CLE or a college or university course, provided the compensation is reasonable, proportionate to the duties, does not exceed what a non-judge would receive, and does not appear to undermine the judge's independence, integrity, or impartiality (Jud.Cond.R. 3.12). Compensation for teaching is not an "honorarium" and a teaching position at a public institution is not a prohibited additional office of profit or trust.

On compensation for speaking, the Board concluded judges, as public officials subject to the Ohio Ethics Law, are prohibited from accepting an honorarium (R.C. §102.03(H)(1)). Because the statutory definition of "honorarium" includes any payment for a speech given, a judge may not receive compensation for a motivational speech or any other speech. Reimbursement of actual expenses for teaching or speaking is permitted (Jud.Cond.R. 3.14; R.C. §102.03(H)(1)), subject to the appearance limits. A judge must report compensation for teaching and expense reimbursement for teaching and speaking on the annual financial disclosure statement (Jud.Cond.R. 3.15).

In practice

Under this opinion, an Ohio judge may teach a college, university, or CLE course and accept reasonable compensation plus reimbursement of actual expenses, but for a speech the judge may accept only expense reimbursement, not compensation, because the Ohio Ethics Law bars accepting an honorarium for "any speech given." Per the opinion, the analysis also turns on giving precedence to judicial duties, avoiding subject matter or audiences that undermine the appearance of impartiality, avoiding comment on pending or impending matters, and avoiding arrangements that cause frequent disqualification. The opinion holds compensation for teaching and expense reimbursement must be reported on the annual financial disclosure statement.

Common questions

Q: Can an Ohio judge be paid to teach a class or a CLE?

A: The opinion concludes yes. A judge may accept compensation for teaching a CLE or a college or university course if the compensation is reasonable, proportionate to the duties, no more than a non-judge would receive, and does not appear to undermine the judge's independence, integrity, or impartiality.

Q: Can a judge be paid for giving a speech?

A: Per the opinion, no. As a public official subject to the Ohio Ethics Law, a judge may not accept an honorarium, and the statutory definition of "honorarium" includes payment for any speech given, so a judge may not be compensated for a motivational or other speech, though expense reimbursement is allowed.

Q: Are there subjects a judge should avoid teaching?

A: The opinion states a judge should not teach in a way that undermines the appearance of impartiality, giving the example that a judge may teach a CLE on OVI and domestic-violence laws and procedures but should not teach how to defend an OVI case or how best to prosecute a domestic-violence case.

Q: Does the judge have to report teaching pay?

A: Per the opinion, yes. A judge must report compensation received for teaching and reimbursement of expenses for teaching and speaking on the annual financial disclosure statement required under Jud.Cond.R. 3.15.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct provisions on extrajudicial activities: Jud.Cond.R. 1.2 (confidence in the judiciary), 2.1 (precedence of judicial duties), 2.10 (statements on pending and impending cases), 2.11 (disqualification), 3.1 (extrajudicial activities generally), 3.11 (financial activities), 3.12 (compensation for extrajudicial activities), 3.14 (reimbursement of expenses), and 3.15 (financial-disclosure reporting). It applies the Ohio Ethics Law (R.C. §102.01 and §102.03) governing honoraria and expense reimbursement for public officials. The opinion withdraws Adv. Ops. 1986-02, 1989-28, 1994-12, and 1995-9.

Citations and references

Rules of Judicial Conduct:

• Ohio Jud.Cond.R. 1.2, 2.1, 2.10, 2.11, 3.1 and cmts. [1], [2], 3.11(B)(3), 3.12 and cmts. [1A], [1B], [2], 3.14 and cmt. [3], 3.15

Statutes and constitutional provisions:

• R.C. §102.01(B), (H); R.C. §102.03(H)(1) (Ohio Ethics Law; honorarium and expense reimbursement)
• Ohio Const. Art. IV, §6(B) (additional office of profit or trust)

Cases and other authority:

• State ex rel Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1995)
• Oh. Ethics Comm. Staff Letter (Thomas), March 16, 2015
• S.C. Adv. Comm. Op. 22-2006; Neb. Jud. Ethics Op. 06-04: teaching subject matter and impartiality

Other opinions cited:

• Ohio BPC Adv. Ops. 1986-02, 1989-28, 1994-12, and 1995-9 (withdrawn by this opinion)

See also

• Ohio BPC Op. 1986-002: Common Pleas Judge Instructing at a State University
• Ohio BPC Op. 1994-012: Judge Compensation for Teaching and the Honorarium Ban
• Ohio BPC Op. 1995-009: Judge Compensation for CLE Teaching vs. Motivational Speeches

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2021/12/Adv.-Op.-2021-11-Final.pdf

Original opinion text

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

OPINION 2021-11
Issued December 10, 2021
Withdraws Adv. Ops. 1986-02, 1989-28, 1994-12, 1995-9

Extrajudicial Activities of Teaching and Speaking

SYLLABUS: A judge may teach a course, accept a speaking engagement, or teach a continuing education course. A judge may accept compensation and reimbursement of expenses for teaching. A judge may accept reimbursement of expenses but not compensation for speaking engagements.

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

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

OPINION 2021-11
Issued December 10, 2021
Withdraws Adv. Ops. 1986-02, 1989-28, 1994-12, 1995-9

Extrajudicial Activities of Teaching and Speaking

SYLLABUS: A judge may teach a course, accept a speaking engagement, or teach a continuing education course. A judge may accept compensation and reimbursement of expenses for teaching. A judge may accept reimbursement of expenses but not compensation for speaking engagements.

QUESTIONS PRESENTED:

1. Whether a judge may teach a course at public or private college or university and receive compensation and reimbursement for expenses.

2. Whether a judge may teach a continuing legal education (CLE) course and receive compensation and reimbursement for expenses.

3. Whether a judge may give a motivational speech and receive compensation and reimbursement for expenses.

APPLICABLE RULES: Jud.Cond.R. 1.2, 2.1, 2.10, 2.11, 3.1, 3.11, 3.12, 3.14, 3.15

OPINION:

Judges are encouraged and uniquely qualified to participate in extrajudicial activities that concern the law, the legal system, and the administration of justice. A judge’s participation “helps integrate judges into their communities and furthers public understanding of and respect for courts and the judicial system.” Jud.Cond.R. 3.1, cmt.[2].
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Teaching a CLE, teaching a class at a state college or university, either public or private, or accepting speaking engagements is permissible under the Code of Judicial Conduct when time permits, judicial independence, integrity, and impartiality are not compromised, and the judge complies with all applicable provisions of the Code. Jud.Cond.R. 3.1., cmt. [1], 3.11(B)(3). The Code of Judicial conduct does not limit a judge to speaking or teaching on topics pertaining only to the law, the legal system, or the administration of justice.

Precedence of Official Duties

Engagement in an extrajudicial activity like teaching or speaking requires a judge to give precedence to his or her official judicial duties. Jud.Cond.R. 2.1. Consequently, a judge should not accept an opportunity to teach or an invitation to speak if the activity will interfere with the regular performance of the judge’s official duties. For instance, a judge’s teaching schedule should not create conflicts with the judge’s daily docket or administrative schedule. The judge must also avoid the appearance that he or she is devoting a significant amount of time to teaching or speaking as an extrajudicial activity.

Maintaining Judicial Impartiality

A judge’s teaching or speaking activities should not appear to a reasonable person to undermine the judge’s impartiality. Jud.Cond.R. 1.2. The subject matter and the audience should be considered before a judge accepts an offer to teach or speak. For example, a judge may teach a CLE on OMVI and criminal domestic violence laws and procedures, but should not teach a course on how to defend an OMVI case or how to best prosecute a domestic violence case. Such conduct would raise questions about the judge’s impartiality when presiding over cases involving the same issues. S.C. Adv. Comm. Op. 22-2006, Neb. Jud. Ethics Op. 06-04.

Commenting on Impending or Pending Matters

When accepting teaching or speaking opportunities a judge must be careful to avoid areas concerning pending or impending cases as part of the offered subject matter. A judge is specifically prohibited from making statements about cases that might affect the outcome or impair the fairness of pending or impending cases. Jud.Cond.R. 2.10. On
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the other hand, a judge may speak generally about the law, the legal system, the administration of justice, court procedures, and his or her role as a judge.

Frequent Disqualification When Teaching

A judge must avoid participation in extrajudicial activities that would lead to the judge’s frequent disqualification. Jud.Cond.R. 3.1. Frequent disqualification in the context of teaching may arise when a college or university that employs the judge regularly appears as a party in his or her court. In such a situation, a judge must examine whether he or she can be fair and impartial or harbors any bias or prejudice toward his or her employer. Jud.Cond.R. 2.11. In those situations where a reasonable person may question the impartiality of the judge, a waiver of disqualification may be sought. Jud.Cond.R. 2.11(C). If a judge possesses personal bias or prejudice in a matter concerning the entity where the judge teaches, waiver of disqualification is not available, and the judge must recuse from the matter. In the latter situation, a judge’s frequent disqualification would require the judge to forego the teaching opportunity.

Compensation for Teaching

A judge may receive compensation for engaging in the extrajudicial activity of teaching a CLE or college or university course. The compensation must be reasonable and proportionate to the teaching duties performed. More specifically, the compensation must not exceed that what someone who is not a judge would receive for the same activity. Jud.Cond.R. 3.12, cmt. [1B]. Jud.Cond.R. 3.12. In addition, the source and amount of the compensation must not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. Id. Compensation for teaching is not considered an “honorarium” otherwise prohibited under the Ohio Ethics Code, discussed supra, nor is a teaching position at a public institution considered the holding of an additional office of profit or trust prohibited under Ohio Const. Art. IV, §6(B). See State ex rel Bricker v. Gessner, 129 Ohio St. 290, 195 N.E. 63 (1995).

Compensation for Speaking

Judges are public officials subject to the Ohio Ethics Law. R.C. §102.01(B). Public officials who file financial disclosure statements are prohibited under the Ohio Ethics Law from accepting an honorarium. R.C. §102.03(H)(1). Jud.Cond.R. 3.12, cmt. [1A]. An
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“honorarium” is defined as “any payment made in consideration for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or similar gathering.” R.C. §102.01(H). The Ohio Ethics Commission has explained that the activities listed in the definition of “honorarium” are typically applied to isolated or one-time events. Oh. Ethics Comm. Staff Letter (Thomas), March 16, 2015. Consequently, the Board concludes that motivational speeches fall into the statutory category of “any speech given” and therefore a judge may not receive compensation for a motivational speech, or any other speech, under the Ohio Ethics Law.

Reimbursement of Expenses for Teaching or Speaking

Reimbursement of expenses related to teaching or speaking, such as travel, food, or lodging, must be limited to the actual costs incurred by the judge and cannot give the appearance of influence the judge’s judicial duties or appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. Jud.Cond.R. 3.14. Before accepting a reimbursement for expenses, a judge should consider the enumerated factors set forth in Jud.Cond.R. 3.14, cmt. [3]. Reimbursement of expenses of public officials is permitted by R.C. 102.03(H)(1).

A judge is required to report any compensation received for teaching and reimbursement of expenses for teaching and speaking on the annual financial disclosure statement required to be filed under Jud.Cond.R. 3.15. Jud.Cond.R. 3.12, cmt. [2].