Ohio Board Advisory Opinion Op 88-036

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-36
Issued December 16, 1988
[Withdrawn by Board on Dec. 5, 1997 due to amended Canon 4(F), eff. May 1, 1997]
SYLLABUS: A full-time judge or referee is precluded from practicing law under Canon 5F of the
Code of Judicial Conduct. Ethical Consideration 3-5 states that the practice of law relates to the
rendition of services for others that call for the professional judgment of a lawyer. Preparing wills
for relatives is considered engaging in the practice of law.
OPINION: We have before us your request for an advisory opinion on whether you may draft
wills and/or trusts for your relatives when you are a full-time referee of a probate/juvenile court.
A referee is a judge for purposes of complying with the Code of Judicial Conduct. Code of Judicial
Conduct Compliance Section. Canon 5F states,
[f]ull-time Judges, including those persons designated as Judges in the
Compliance section of this Code, should not practice law.
The issue of judges or referees practicing law is clear-cut under the Code of Judicial Conduct. A
full-time judge, which includes referees, should not “engage in the private practice” of law. Id.
In your request you ask whether drafting wills is considered practicing law. Defining what
constitutes the “practice of law” is difficult. The practice of law relates to the rendition of services
for others that call for the professional judgment of a lawyer. Code of Professional Responsibility
EC3-5. Clearly, preparing wills fits within the parameters of what is considered practicing law.
Charging a minimal fee or even rendering the services gratuitously would not affect the
proscription of Canon 5F. See, ABA Standing Committee on Ethics & Professional Responsibility
Informal Op. 86-1522 (1986).

Op. 88-36 2
In conclusion, it is our opinion and you are so advised that a full-time referee is precluded from
practicing law, including preparing wills or trusts for relatives.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.