Ohio Board Advisory Opinion Op 17-002

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.
OPINION 2017-02
Issued February 10, 2017
Withdraws Opinion 89-32
Duty of Judge to Report Misconduct
SYLLABUS: A judge who has knowledge that another judge has committed a violation
of the Code of Judicial Conduct that raises a question regarding the judge’s honesty,
trustworthiness, or fitness as a judge in other respects is required to report it to the
appropriate disciplinary authority. Jud.Cond.R. 2.15(A). Likewise, a judge who has
knowledge of a lawyer’s violation of the Rules of Professional Conduct has an ethical
duty to report it to the disciplinary counsel or a local certified grievance committee.
Jud.Cond.R. 2.15(B). A report of misconduct by a judge should be made within a
reasonable time after the judge becomes aware of the violation.
If a judge does not have actual knowledge, but receives information indicating a
substantial likelihood that another judge or lawyer has committed reportable
misconduct, then the judge should take appropriate action, which may include
communicating directly with the judge or lawyer involved, communicating with a
supervisor, partner, or colleague, or reporting the suspected violation to the appropriate
disciplinary authority. Jud.Cond.R. 2.15, cmt. [2].
Additionally, a judge who reports a lawyer’s misconduct to the proper
disciplinary authority is not presumptively disqualified from presiding over cases in
which that lawyer appears.

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www.supremecourt.ohio.gov/boards/boc
DAVID L. DINGWELL
CHAIR
RICHARD A. DOVE
DIRECTOR
SANFORD E. WATSON II
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL
OPINION 2017-02
Issued February 10, 2017
Withdraws Opinion 89-32
Duty of Judge to Report Misconduct
SYLLABUS: A judge who has knowledge that another judge has committed a violation
of the Code of Judicial Conduct that raises a question regarding the judge’s honesty,
trustworthiness, or fitness as a judge in other respects is required to report it to the
appropriate disciplinary authority. Jud.Cond.R. 2.15(A). Likewise, a judge who has
knowledge of a lawyer’s violation of the Rules of Professional Conduct has an ethical
duty to report it to the disciplinary counsel or a local certified grievance committee.
Jud.Cond.R. 2.15(B). A report of misconduct by a judge should be made within a
reasonable time after the judge becomes aware of the violation.
If a judge does not have actual knowledge, but receives information indicating a
substantial likelihood that another judge or lawyer has committed reportable
misconduct, then the judge should take appropriate action, which may include
communicating directly with the judge or lawyer involved, communicating with a
supervisor, partner, or colleague, or reporting the suspected violation to the appropriate
disciplinary authority. Jud.Cond.R. 2.15, cmt. [2].
Additionally, a judge who reports a lawyer’s misconduct to the proper
disciplinary authority is not presumptively disqualified from presiding over cases in
which that lawyer appears.

Op. 2017-02 2
QUESTIONS PRESENTED: 1) What is a judge’s duty under the Code of Judicial
Conduct to report another judge’s or lawyer’s misconduct?; and 2) If a judge reports a
lawyer’s violation of the Code of Professional Responsibility, is the judge disqualified
from hearing any cases involving that lawyer?1
APPLICABLE RULES: Jud.Cond.R. 2.15, Prof.Cond.R. 8.3
OPINION:
QUESTION 1: A judge is obligated to take action to address known misconduct of
another judge or lawyer. A judge who has knowledge that another judge has committed
a violation of the Code of Judicial Conduct that raises a question regarding the judge’s
honesty, trustworthiness, or fitness as a judge in other respects has an ethical duty to
inform the appropriate authority. Jud.Cond.R. 2.15(A). The appropriate authority to
which judicial misconduct must be reported is either the Office of Disciplinary Counsel
or the Ohio State Bar Association.
Similarly, if a judge has knowledge that any lawyer has violated the Rules of
Professional Conduct that raises a question as to the lawyer’s honesty, trustworthiness,
or fitness as a lawyer in other respects is required to inform the appropriate authority,
which is the Ohio Office of Disciplinary Counsel or a local certified grievance committee.
Jud.Cond.R. 2.15(B). Since a judge is also a lawyer, a judge must self-report a violation
of the Rules of Professional Conduct that satisfies this standard. See also, Prof.Cond.R.
8.3(a); Adv.Op. 2007-1.
The rule distinguishes between a judge who possesses actual knowledge of
misconduct, and one who receives information indicating a “substantial likelihood” that
misconduct was committed. If a judge lacks actual knowledge of misconduct by another
judge or a lawyer, but receives information indicating a substantial likelihood of the
reportable misconduct, the judge should take “appropriate action.” Jud.Cond.R. 2.15,
cmt. [2]. Appropriate action may include, but is not limited to, communicating directly
with the judge or lawyer involved, communicating with a supervisor, partner, or
1 The question presented in this advisory opinion is the same or substantially similar to the question
presented in Adv.Op. 89-32.

Op. 2017-02 3
colleague, or reporting the suspected violation to the appropriate disciplinary authority.
Jud.Cond.R. 2.15, cmt. [2]. A judge should make a case-by-case assessment as to what
corrective action is appropriate in the situation. See, e.g. Wash. Ethics Adv. Comm. Op.
02-15 (2002).
A judge has a responsibility to participate in efforts to ensure public respect for
the judicial system, and therefore, should not ignore or deny known misconduct among
judicial colleagues or lawyers. Jud.Cond.R. 2.15, cmt. [1]. Jud.Cond.R. 2.15 limits a
judge’s reporting obligation to misconduct that an “independent judiciary must
vigorously endeavor to prevent.” Jud.Cond.R. 2.15, cmt. [1].
Although Jud.Cond.R. 2.15 does not provide a timeframe in which a judge is
required to report misconduct, a “reasonable” time after the judge becomes aware of the
violation may be inferred from case law. In Disciplinary Counsel v. Bozanich, 95 Ohio St.3d
109, 2002-Ohio-1939, the Supreme Court found that a seven-year delay was not a
“reasonable” time in which to report a judge’s misconduct to investigatory authorities
under DR 1-103 (now Prof.Cond.R. 8.3).
Additionally, the Code of Judicial Conduct does not impose a duty for judges to
report misconduct by those who are not judges or lawyers. See, e.g. Ariz. Sup. Ct. Jud.
Ethics Adv. Comm. Op. 92-15 (1992) (judge must weigh severity of criminal activity and
is not required to report every witness who admits to smoking marijuana, but is clearly
obligated to notify the police of a witness who, in court, admits to committing recent,
unsolved serial murders). However, the Board advises that a judge should expose
obvious and egregious illegal activity where the failure to do so could undermine
confidence in the integrity of the judiciary. See, Pa. Adv. Op. 95-1 (1995).
QUESTION 2: A judge who reports to the proper disciplinary authority that a lawyer
violated the Rules of Professional Conduct, is not automatically required to recuse
himself or herself from cases involving that lawyer, even if the judge is the chief
complaining witness. In re Disqualification of Lynch, 135 Ohio St.3d 1277, 1278, 2013-Ohio-
910, citing In re Disqualification of Belskis (1993), 74 Ohio St.3d 1252. In some situations, a
combination of unique factors may create an appearance of impropriety that may require
a judge to recuse himself or herself from a matter. See, e.g. In re Disqualification of O’Neill,

Op. 2017-02 4
100 Ohio St.3d 1226, 2002-Ohio-7476; In re Disqualification of Maschari (1999), 88 Ohio St.3d
1212.
A judge’s duty to report another judge’s or lawyer’s misconduct does not create
the appearance of impropriety. Rather, an objective test is used to determine whether a
judge’s participation in a case presents an appearance of impropriety. A judge should
recuse himself or herself if “ ‘a reasonable and objective observer would harbor serious
doubts about the judge’s impartiality.’” Lynch, 2013-Ohio-910, at ¶ 8, citing In re
Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359 ¶ 8. Moreover, a judge is
presumed to be impartial and comply with the law. Jud.Cond.R. 1.1, 2.2. As a result, a
judge fulfilling his or her professional duty by reporting a lawyer’s violation of the Rules
of Professional Conduct does not alone disqualify the judge from hearing cases involving
that lawyer.
CONCLUSION: A judge with knowledge that another judge or lawyer has committed
misconduct that raises a question as to the other judge’s or lawyer’s honesty,
trustworthiness, or fitness as a judge or lawyer in other respects is required to report it to
the appropriate disciplinary authority. If a judge does not possess actual knowledge, but
receives information indicating a substantial likelihood that another judge or lawyer has
committed reportable misconduct, then the judge must take appropriate action, which
may include communicating with the judge or lawyer, communicating with a supervisor,
or reporting it to the appropriate disciplinary authority. A report of misconduct by a
judge should be made within a reasonable time after the judge becomes aware of the
violation. Additionally, a judge who reports a lawyer’s misconduct to the proper
disciplinary authority is not automatically disqualified from hearing cases in which that
lawyer appears.