Ohio Board Advisory Opinion Op. 24-06

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

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.

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.

€> Ohio Board ot Professional Conduct

THOMAS J. MOYER OHIO JUDICIAL CENTER
65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
614.387.9370
www.bpc.ohio.gov

HON. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
VACANT
COUNSEL

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

*** an objective one. A

participation in a case presents an appearance of impropriety is
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, (8. The “reasonable observer” is considered to be “fully informed of all

Op. 2024-06 2

the relevant facts in the record —not isolated facts divorced from their larger context.” In
re Disqualification of Gall, 2013-Ohio-1319, 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, (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 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

Op. 2024-06 3

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), ajudge 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.