Must an Ohio judge recuse when a party's lawyer is also representing the judge in another matter?

Plain-English summary

The Board addresses whether a judge must recuse when a lawyer representing a party before the judge is, at the same time, representing the judge in another matter. The opinion concludes that, absent a waiver from the parties, the judge must recuse under Jud.Cond.R. 2.11(A).

The opinion applies the general objective standard: a judge must disqualify when impartiality may reasonably be questioned, asking whether a reasonable observer fully informed of the record would harbor serious doubts (citing In re Disqualification of Lewis and Gall). Drawing on Ohio affidavit-of-disqualification decisions, the Board holds that a judge should not sit in a case where a litigant is represented by the judge's own lawyer (In re Disqualification of Badger), and that recusal is required whether the lawyer represents the judge in a personal matter or in the judge's official capacity. The duty is limited, though: the appearance of a different lawyer from the same firm, prosecutor's office, or attorney general's office does not mandate recusal (In re Disqualification of Mingo), and disqualification turns on an existing client-lawyer relationship, not a past one (In re Disqualification of Morgan; In re Disqualification of Morley). The opinion also notes recusal may be unnecessary where the judge is only a nominal party.

The opinion adds two qualifications. First, where a government office (such as the county prosecutor) represents the judge by statute, recusal may be avoided by assigning a different attorney to the pending matter. Second, the parties may waive disqualification under Jud.Cond.R. 2.11(C) through the on-the-record process, and the "rule of necessity" (Jud.Cond.R. 2.11, cmt. [3]) may let an otherwise-disqualified judge act temporarily when no other judge is available, with prompt reassignment.

Opinion 2024-06 withdraws and replaces Adv. Op. 1989-34.

In practice

Under this opinion, an Ohio judge who is currently a client of a lawyer appearing for a party must recuse absent a valid waiver, regardless of whether that representation is personal or official. The opinion confines the duty to the individual lawyer with the current relationship: it does not reach the lawyer's firm or government-office colleagues, and it does not reach a lawyer who represented the judge only in the past. Where a statutory government representative is involved, the opinion identifies reassignment of another attorney as a way to avoid the conflict.

Common questions

Q: If my lawyer appears for a party in my courtroom, must I recuse?

A: Yes, absent a waiver. The opinion concludes a judge must recuse from a case in which a party is represented by a lawyer who is concurrently representing the judge in another matter.

Q: Does it matter whether the lawyer represents the judge personally or officially?

A: No. Per the opinion, recusal is required regardless of whether the lawyer represents the judge in a personal matter or in the judge's official capacity (citing Badger).

Q: Are other lawyers in that lawyer's firm or office also disqualifying?

A: No. The opinion states that the appearance of a different lawyer from the same law firm, prosecutor's office, or attorney general's office does not mandate the judge's recusal (citing Mingo).

Q: Can the parties waive the disqualification?

A: Yes. The opinion points to the Jud.Cond.R. 2.11(C) process, under which the parties and lawyers may agree, outside the judge's presence, that the judge need not be disqualified, with the agreement placed on the record.

Background and rules framework

The opinion interprets Ohio Jud.Cond.R. 2.11(A) (disqualification when impartiality may reasonably be questioned), the waiver procedure in Jud.Cond.R. 2.11(C), and Comment [3]'s rule of necessity. Because the scenario is not an enumerated ground, the Board analyzes it under 2.11(A) and Ohio disqualification case law. The Code of Judicial Conduct governs, so no Model Rule analogue is cited.

Citations and references

Rules:

• Ohio Jud.Cond.R. 2.11(A) (disqualification when impartiality may reasonably be questioned)
• Ohio Jud.Cond.R. 2.11(C) (waiver of disqualification)
• Ohio Jud.Cond.R. 2.11, cmt. [3] (rule of necessity)

Cases:

• In re Disqualification of Badger, 47 Ohio St.3d 604 (1989), judge should not sit where a litigant is represented by the judge's lawyer
• In re Disqualification of Reinbold, 2017-Ohio-9427, impartiality reasonably questioned; nominal-party exception
• In re Disqualification of Mingo, 2021-Ohio-3269, different lawyer from the same firm or office does not mandate recusal
• In re Disqualification of Morgan, 74 Ohio St.3d 1223 (1990); In re Disqualification of Morley, 74 Ohio St.3d 1265 (1994), current vs. former representation
• In re Disqualification of Lewis, 2004-Ohio-7359; In re Disqualification of Gall, 2013-Ohio-1319, objective reasonable-observer test

See also

• Ohio BPC Op. 2024-07: Recusal When a Campaign Opponent Appears as Counsel
• Ohio BPC Op. 2025-01: Disclosing a Grievance Against a Judge

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2024/12/Adv.-Op.-2024-06-Board-Final.pdf

Original opinion text

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

OPINION 2024-06
Issued December 13, 2024
Withdraws Adv. Op. 1989-34

Judicial Disqualification When Counsel for Party Represents Judge in Other Matter

SYLLABUS: Absent a waiver by the parties, a judge must recuse himself or herself from cases in which a party is represented by a lawyer who is concurrently representing the judge in another matter. The duty to disqualify does not extend to other lawyers in the same law firm or public office as the lawyer who is representing the judge.

APPLICABLE RULES: Jud.Cond.R. 2.11

QUESTIONS PRESENTED:

Whether a judge must recuse himself or herself from a matter when a lawyer who represents a party before the judge concurrently represents the judge in another matter.

ANALYSIS:

Disqualification in General

Jud. Cond. R. 2.11(A) requires a judge to disqualify himself or herself when the judge's impartiality may be reasonably questioned, including but not limited to several enumerated circumstances in the rule. "The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disqualification of Lewis, 117, 2004-Ohio-7359, paragraph 8. The "reasonable observer" is considered to be "fully informed of all the relevant facts in the record—not isolated facts divorced from their larger context." In re Disqualification of Gall, 2013-Ohio-1319, paragraph 6. The scenario set forth in the question presented is not one of the enumerated circumstances contained in Jud.Cond.R. 2.11(C) and must be analyzed by application of Jud.Cond.R. 2.11(A) and relevant case law.

Judge Currently Represented by Party's Lawyer

Former Chief Justices have held that a judge should not "sit in a case which a litigant is represented by the [judge's] lawyer." In re Disqualification of Badger, 47 Ohio St.3d 604 (1989). Absent a waiver from the parties, a judge must recuse himself or herself from cases in which a party is represented by a lawyer who concurrently represents the judge in another matter. Former Chief Justices have reasoned that a judge's impartiality may be reasonably questioned if a judge presides over a case under these circumstances. In re Disqualification of Reinbold, 2017-Ohio-9427. The recusal of the judge is required regardless of whether the judge is represented by the lawyer in a personal matter or in the judge's official capacity. Badger at 604.

The disqualification standard applies regardless of whether the judge is represented by a lawyer in private practice or a lawyer in a government office. However, the appearance of a different lawyer from the same law firm, prosecutor's office, or attorney general's office does not mandate the judge's recusal. In re Disqualification of Mingo, 2021-Ohio-3269, paragraph 6. In addition, disqualification may not be necessary if the judge is merely a nominal party in the case or is not personally or substantively involved in the litigation. Reinbold at paragraph 5, citing Flamm, Judicial Disqualification, Section 8.5, at 212 (2d Ed. 2007).

Finally, disqualification is required only if the judge has an existing client-lawyer relationship with the counsel representing a party in the case before the judge. In re Disqualification of Morgan, 74 Ohio St.3d 1223, 1224, 657 N.E.2d 1335 (1990). Likewise, a former Chief Justice refused to adopt a rule that requires disqualification of a judge from a case when a lawyer in the case previously represented the judge in an unrelated action. In re Disqualification of Morley, 74 Ohio St.3d 1265, 1266 (1994).

Based on the cited provisions of the Code of Judicial Conduct and disqualification decisions issued by Chief Justices of the Supreme Court, the Board concludes that a judge must recuse from a pending matter in which a lawyer for a party is currently representing the judge in a personal or official capacity. Where the judge is represented by the county prosecutor or other governmental office pursuant to statute or other law, recusal may be avoided through the assignment of another attorney to the pending matter. Although this alternative may work a hardship in smaller government offices, protocols can be put in place to balance resource limitations with ethical obligations.

Waiver of Disqualification

A judge subject to disqualification under Jud.Cond.R. 2.11, except when the judge possesses bias or prejudice against a party or its lawyer, "may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification." Jud.Cond.R. 2.11(C). If the parties and lawyers agree "without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding," and the parties' agreement "shall be incorporated into the record of the proceeding." Id. Despite the availability of the process in Jud.Cond.R. 2.11(C), a judge should carefully consider whether a waiver is appropriate after reviewing all the circumstances related to the judge's disclosure of the basis for possible disqualification.

Rule of Necessity

In certain situations, the "rule of necessity" may allow a judge who would otherwise be disqualified to temporarily hear matters requiring immediate action—such as a probable cause determination or a temporary restraining order hearing—if no other judge is available. Jud.Cond.R. 2.11, cmt. [3]. In this circumstance, the judge should disclose on the record the basis for disqualification and make arrangements for the assignment of the matter to a different judge at the earliest opportunity. Id.