Can a lawyer reveal in an affidavit of disqualification that a disciplinary grievance was filed against the judge?

Plain-English summary

A lawyer who filed a disciplinary grievance against the judge presiding over a client's case asked whether she could mention that grievance in an affidavit of disqualification filed with the Supreme Court under R.C. 2701.03 to seek the judge's removal. The Board concludes she may not.

The opinion rests on Gov.Bar R. V(8), which keeps grievances, proceedings, documents, and deliberations confidential until the Board determines that probable cause exists and certifies a formal complaint. Only after a probable cause panel certifies a complaint do subsequent proceedings and documents become public. The opinion explains that this confidentiality protects judges and lawyers from reputational harm based on unverified allegations, and cites In re Disqualification of Krueger and State ex rel. McCaffrey for the principle that the confidentiality rules bind all attorneys, not only participants in the disciplinary process. The opinion notes Ohio disciplinary cases (Disciplinary Counsel v. Pullins, Disciplinary Counsel v. Oviatt, and Ohio State Bar Assn. v. Evans) where lawyers or a judge were sanctioned for revealing grievance information.

The Board adds a second, independent ground: even if disclosure were allowed, a pending grievance has no bearing on disqualification. Quoting Krueger, a judge is not disqualified "solely because a party or counsel in a pending case has filed a grievance against the judge," and allowing it would invite forum-shopping. Disqualification turns on direct evidence of bias or misconduct relevant to the case, so the reference to a grievance adds nothing to the Chief Justice's analysis.

Opinion 2025-01 withdraws and replaces Adv. Op. 1998-02.

In practice

Under this opinion, an Ohio lawyer preparing an affidavit of disqualification may not state that the lawyer or the client filed a disciplinary grievance against the judge while that grievance remains confidential under Gov.Bar R. V(8), that is, before the Board certifies it as a formal complaint. The opinion treats the grievance as both improper to disclose and irrelevant to whether the judge should be disqualified, which the opinion ties to direct evidence of bias or misconduct in the case at hand.

Common questions

Q: Can a lawyer cite a pending grievance against the judge in an affidavit of disqualification?

A: No. The opinion concludes that disclosing a grievance that has not been certified as a formal complaint violates the confidentiality of Gov.Bar R. V(8).

Q: When does a disciplinary grievance against a judge become public?

A: Per the opinion, grievances, proceedings, documents, and deliberations stay confidential until the Board finds probable cause and certifies a formal complaint; subsequent filings then become public under Gov.Bar R. V(8)(A)(1).

Q: Does filing a grievance against a judge get the judge disqualified?

A: No. The opinion quotes Krueger that a judge is not disqualified solely because a party or counsel filed a grievance, and explains that disqualification turns on direct evidence of bias or misconduct relevant to the case.

Q: Can the lawyer disclose the grievance if she waives confidentiality?

A: The opinion notes that while a lawyer or judge under investigation may waive confidentiality of the proceedings, the waiver does not extend to documents or deliberations expressly designated confidential under Gov.Bar R. V(8)(A)(1)(b).

Background and rules framework

The opinion interprets Ohio Gov.Bar R. V(8), which governs the confidentiality of attorney and judicial disciplinary grievances and the point at which the proceedings become public. It also discusses R.C. 2701.03 (the affidavit-of-disqualification procedure) as the context in which the disclosure question arises. Because the opinion turns on the disciplinary-confidentiality rule rather than a black-letter Rule of Professional Conduct, no Model Rule analogue is cited.

Citations and references

Rules:

• Ohio Gov.Bar R. V(8) (confidentiality of disciplinary grievances)
• Ohio Gov.Bar R. V(8)(A)(1) and V(8)(A)(1)(b) (when proceedings become public; limits of waiver)

Statutes:

• R.C. 2701.03 (affidavit of disqualification of a judge)

Cases:

• In re Disqualification of Krueger, 74 Ohio St.3d 1267 (1995), grievance confidential until formal proceedings; grievance alone does not disqualify a judge
• State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 2012-Ohio-4246, confidentiality rules apply to all attorneys
• Disciplinary Counsel v. Pullins, 2010-Ohio-624, sanction for revealing grievances against a judge in an affidavit of disqualification
• Disciplinary Counsel v. Oviatt, 2018-Ohio-5091, violation by attaching a grievance to a court filing
• Ohio State Bar Assn. v. Evans, 2013-Ohio-4992, judge disciplined for implying a lawyer was under investigation
• In re Disqualification of Eighth Dist. Court of Appeals, 2017-Ohio-2840; In re Disqualification of Russo, 2005-Ohio-7146, scope of disqualification analysis

See also

• Ohio BPC Op. 2010-003: Conditioning a Malpractice Settlement on Grievance Withdrawal
• Ohio BPC Op. 1989-032: Judge Reporting Lawyer Misconduct and Disqualification

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2025/04/Adv.-Op.-2025-01-Final.pdf

Original opinion text

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

OPINION 2025-01
Issued April 4, 2025
Withdraws Adv. Op. 1998-02

Lawyer's Disclosure of Disciplinary Grievance Filed Against Judge

SYLLABUS: A lawyer may not disclose in an affidavit of disqualification filed with the Supreme Court that the lawyer or her client has filed a disciplinary grievance against the judge when the grievance has not been certified as a formal complaint by the Board of Professional Conduct.

APPLICABLE RULES: Gov.Bar R. V

QUESTION PRESENTED:

May a lawyer disclose in an affidavit of disqualification filed with the Supreme Court that the lawyer or her client has filed a disciplinary grievance against the judge?

ANALYSIS:

Background

A lawyer has filed a grievance against the judge presiding over a client's case. The lawyer is considering the filing of an affidavit of disqualification pursuant to R.C. 2701.03 with the Supreme Court seeking the removal of the judge from the case. The lawyer asserts that her client has a constitutional right to an impartial adjudicator and believes it is necessary to include information about the filing of the grievance in the affidavit of disqualification.

Gov.Bar R. V(8)

Gov.Bar R. V(8) establishes when proceedings and documents related to the investigation of a grievance remain confidential and when they are become public. Grievances, proceedings, documents, and deliberations are confidential until the Board of Professional Conduct determines that probable cause exists and certifies a formal complaint. Gov.Bar R. V(8)(A)(1). Once a complaint is certified by a probable cause panel, subsequent proceedings and documents filed in the case become public. While a lawyer or judge under investigation by disciplinary authorities may waive confidentiality of the proceedings, the waiver does not extend to documents or deliberations expressly designated as confidential under the rule. Gov.Bar R. V(8)(A)(1)(b).

Gov.Bar R. V(8)(A)(1)(b) ensures that preliminary misconduct investigations of judges and lawyers are protected from public disclosure, ensuring that unverified allegations do not result in reputational damage to the lawyer or judge. In In re Disqualification of Krueger, 74 Ohio St.3d 1267 (1995), the affiant-lawyer stated in her affidavit of disqualification that she intended to file a disciplinary complaint against the judge. The Court cautioned that under the predecessor rule to Gov.Bar R. V(8) "disciplinary complaints remain private until and unless formal proceedings begin before the [Board of Professional Conduct]." Id. at 1268. Similarly, in State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 2012-Ohio-4246, the Court emphasized that "the rules safeguarding the confidentiality of the grievance process apply not only to participants in the [disciplinary] process, but to all attorneys."

Disciplinary Cases

The Supreme Court has consistently emphasized a lawyer's duty to uphold the confidentiality of the disciplinary grievance process, reinforcing the application of Gov.Bar R. V(8) in cases where a lawyer files an affidavit of disqualification.

The intentional disclosure of grievance related information about a judge in an affidavit of disqualification case was at issue in Disciplinary Counsel v. Pullins, 2010-Ohio-624. The lawyer was ultimately sanctioned for statements he made in an affidavit of disqualification he filed against a judge and for other professional misconduct. In his affidavit the lawyer revealed that he had previously filed three separate grievances against the judge due to the judge's alleged refusal to follow the law and that the judge had violated the Code of Judicial Conduct.

The Supreme Court has also addressed a lawyer's duty to uphold the confidentiality of the grievance process in other contexts. For example, in Disciplinary Counsel v. Oviatt, 2018-Ohio-5091, the lawyer violated the confidentiality of the grievance process by referencing and attaching portions of a grievance he had filed against appellate judges to a filing he submitted to a common pleas court. Similarly, the judge in Ohio State Bar Assn. v. Evans, 2013-Ohio-4992 was disciplined for violating the predecessor to Gov.Bar R. V(8) for removing a public defender from 64 cases due to a conflict that had arisen between the lawyer and the judge and for implying in his entries that the lawyer was the subject of a disciplinary investigation.

Grievance Not Relevant to Disqualification Determination

Although disclosure of a grievance is prohibited, it has no bearing on a judge's disqualification. A former Chief Justice stated that a judge is not disqualified "solely because a party or counsel in a pending case has filed a grievance against the judge." Krueger at 1268. To hold otherwise would invite parties to file disciplinary grievances solely to disqualify a judge, promoting forum-shopping and disrupting the orderly administration of judicial proceedings. In re Disqualification of Eighth Dist. Court of Appeals, 2017-Ohio-2840, paragraph 6. Moreover, "[t]he disclosure by a lawyer that a grievance has been filed alleging the same facts as are set forth in an affidavit of disqualification provides no additional information that will aid the Chief Justice in determining whether disqualification is appropriate." Pullins at paragraph 15.

Disciplinary grievances and affidavits of disqualification serve separate and distinct purposes. The removal of a judge is based on direct evidence of bias, partiality, or misconduct relevant to the case at hand. In re Disqualification of Russo, 2005-Ohio-7146. Thus, the reference of the filing of a grievance in an affidavit of disqualification is not only prohibited by Gov.Bar R. V(8), but is also irrelevant to the disqualification analysis.