Ohio Board Advisory Opinion Op 91-002

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 91-2
Issued February 8, 1991
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the
Ohio Code of Judicial Conduct, eff. 3/1/2009.]
[Not Current-subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]
SYLLABUS: Under the appropriate circumstances a county court judge in his part-time practice
of law may represent a defendant on a traffic violation pending in a municipal court of another
county.
OPINION: We have before us your request for an opinion on questions dealing with county court
judges and their outside practice of law. You inquire as to whether a judge of a county court may
represent a defendant on a traffic violation pending in a municipal court of another county. Further,
you ask if the particular defendant in question previously appeared before the county court judge,
whether this fact disqualifies him as an attorney from representing this same defendant. You
further stipulate that the defendant charged with the traffic offense is not on probation or serving a
suspended sentence or in anyway subject to the judge's continuing jurisdiction.
The Board of Commissioners in Op. 87-29 addressed the first branch of the question posed. This
opinion noted that under OH. REV. CODE ANN. § 1907.16 a judge of a county court is
disqualified from the practice of law only as to matters pending or originating in that county court
during his term of office. In Op. 87-029, the Board stated that county court judges may engage in
the practice of law provided they do not practice in a county court in which they serve as judge.
Ordinarily, the Code of Judicial Conduct prohibits a sitting judge from the outside practice of law.
See Canon 5 (F), Code of Judicial Conduct. However, the Ohio Legislature has endorsed the
limited part-time practice by a county court judge in OH. REV. CODE ANN. § 1907.16. The
intent of the legislature is clear on this point. Further, OH. REV. CODE ANN. § 4705.01 forbids
judges from practicing law with an exception for part-time judges found in OH. REV. CODE ANN.
§ 1901.11 (A) (2). OH. REV. CODE ANN. § 1901.11 (A) (2) provides that part-time judges are
disqualified from the practice only as to matters pending or originating in the courts in which they
serve.

Op. 91-2 2
In 1967, the Attorney General rendered Op. 67-119 stating the following:
A county court judge may not represent defendants wherein the State of Ohio is
plaintiff in criminal actions instituted in a county court to which that judge is
elected. A county court judge may, however, represent defendants wherein the State
of Ohio is plaintiff in criminal actions which originate in courts of the county other
than the one to which he was elected to serve as judge.
The Ohio State Bar Association provides additional authority in Informal Op. 81-4 by agreeing
with the analysis and opinion of the Ohio Attorney General that a county court judge could
represent defendants in a court other than his own. The Board concurs.
The more difficult aspect of your hypothetical question is whether the part-time county court judge
in his capacity as a criminal defense attorney should represent someone who has appeared before
him in his judicial capacity albeit in an unconnected matter. DR 9-101 (A) of the Code of
Professional Responsibility states that a lawyer shall not accept private employment in a matter
upon the merits of which he has acted in a judicial capacity.
Various opinions have discussed the precise meaning of the language contained in DR 9-101. The
American Bar Association in Formal Op. 342 defined "matter" as it appears in DR 9-101: “the
same lawsuit or litigation, (or facts material to an issue) is the same matter.” This opinion defining
"matter" also squares with Informal Op. 79-1 and Op. 81-1 issued by the Ohio State Bar
Association. Therefore, because your question contemplates representation on a totally new
criminal charge, it would not be ethically improper under DR 9-101 (A) for the county court judge
in his part-time practice of law to represent the same person who had appeared before him in a
judicial capacity on a different criminal case.
In Ohio, county court judges are defined as part-time judges for purposes of compliance with the
Code of Judicial Conduct. Section A (2) of the compliance provisions also regulates the outside
practice of law that part-time judges may engage in.
[A part-time judge] should not practice law in the court on which he serves or in any
court subject to the appellate jurisdiction of the court on which he

Op. 91-2 3
serves, or act as a lawyer in a proceeding in which he has served as a judge or in any
other proceeding related thereto. CJC Compliance § A (2).
As discussed above, the Board does not find that your question of representation of a criminal
defendant would be a "related proceeding." The appellate jurisdiction language in (A) (2) forbids
the judge from appearing in an inferior court from which an appeal could be taken to the court on
which he or she serves. This forbids a county court judge from representing anyone in mayor's
court as well as his or her county court.
In undertaking any representation, the part-time judge practicing as an attorney must make certain
that such representation does not give the appearance of impropriety or in any way trade upon his
position and influence. Code of Judicial Conduct Canon 2. There are facts and circumstances that
might lead observers to believe that the judge (practicing as an attorney) is engaged in conduct
prejudicial to the administration of justice in violation of DR 1-102 (A) (5). In a similar vein, once
the judge acts as an attorney for an individual defendant he may be disqualified from ever taking
any judicial action against that individual in the future because of personal knowledge that would
come to him in the attorney/client relationship. Future actions undertaken as a judge would them
be circumscribed by the terms of Canon 3 C (1) (a), (b) and (d) (ii) of the Code of Judicial Conduct.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Judicial Conduct and the Code of Professional
Responsibility.