Ohio Board Advisory Opinion Op 90-017

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 90-17
Issued August 17, 1990
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the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: A judge is disqualified from any case where his or her impartiality may reasonably
be questioned. Under Canon 3C(1)(d)(ii), a judge must disqualify himself or herself from any case
where one of the lawyers is related to the judge or the judge's spouse within the third degree of
relationship. Probate judges must comply with this Code provision in all proceedings including the
filing and processing of an uncontested estate before the judge.
OPINION: We have before us your request for an opinion on whether probate judges are
disqualified from proceedings, including the uncontested filing and processing of an estate, where
one of the lawyers involved is related to the sitting judge within the third degree of relationship.
Canon 3C (1) (d) (ii), as you indicate in your request, provides:
(1) A judge should disqualify himself in a proceeding in which his
impartiality might reasonably be questioned, including but not
limited to instances where:
. . . (d) he or his spouse, or a person within the third degree of
relationship to either of them, or the spouse of such a person:
. . . (ii) is acting as a lawyer in the proceeding . . .
The degree of relationship is defined according to the civil law system and is set forth in the
commentary following Canon 3C (3). This rule prevents a client from believing that "special favor
and consideration can be obtained in a case through retention of a judge's relative as attorney."
Abramson, Judicial Disqualification under Canon 3C of the Code of Judicial Conduct 51 (Am.
Judicature Society, 1986).

Op. 90-17 2
The Supreme Court of South Dakota censured a judge who frequently allowed his wife to practice
law before him in probate and guardianship matters. In re Heuermann, 240 N.W.2d 603 (S.D.
1976).
A concern is that an uncontested matter before the probate judge may become contested as it
proceeds through probate court. Furthermore, the probate judge approves the fees to be paid to the
lawyer in the uncontested matter. For these reasons and to avoid any appearance of impropriety, a
probate judge may not preside over the uncontested filing and processing of an estate by a relative
within the third degree of relationship to the judge or the judge's spouse.
In conclusion, it is our opinion and you are so advised that a probate judge is disqualified from
presiding over any matters where one of the lawyers is related to the judge within the third degree
of relationship.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Judicial Conduct.