Ohio Board Advisory Opinion Op 87-024

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 87-024
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the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 should recuse himself from proceedings where his impartiality might
reasonably be questioned. This includes instances where the judge's spouse is a party to or lawyer
in the proceeding. A prosecuting attorney may not practice law in his or her spouse's courtroom.
However, disqualification of one prosecuting attorney does not per se disqualify all other lawyers
serving that office unless disqualification is reasonably necessary to insure the fairness of a trial,
the proper administration of justice or public confidence in the legal system. A lawyer whose
spouse is a common pleas judge may practice before any other judge in the county where his or her
spouse presides, but may not engage in conduct which suggests an ability to improperly influence a
tribunal.
TO: Judge William Walker
FROM: Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: June 22, 1987
We have before us your request for our informal advisory opinion regarding your situation
as common pleas judge in the county where your spouse is a member of the prosecuting attorney's
staff. Specifically, you seek our opinion with regard to the following:
1. your spouse's appearance before other judges of the general
jurisdiction, the division of domestic relations, probate and
juvenile court.

Op. 87-024 2
2. the necessity of you recusing yourself in any case involving any
member of the prosecuting attorney's staff.
We agree with your assumption that your spouse may not appear as counsel in your
courtroom. Code of Judicial Conduct, Canon 3C(1)(d)(ii) (1982). However, under Canon 3D of
the Code of Judicial Conduct (the "Judicial Code"), disqualification under Canon 3C(1)(d) may be
waived by all the parties and lawyers by agreeing in writing that the judge's relationship is
immaterial. Code of Judicial Conduct, Canon 3D (1982).
Regarding your first question, it is our opinion that your spouse may ethically appear before
other judges in your county. However, both lawyers and judges must scrupulously avoid any
appearance of impropriety. Code of Judicial Conduct Canon 2 (1973), Model Code of Professional
Responsibility DR 9-101 (1985). Also, under the Model Code, a lawyer shall not engage in
conduct which suggests the ability to improperly influence any tribunal. Model Code of
Professional Responsibility DR 9-101(C) (1985). Furthermore, a lawyer shall not communicate, or
cause another to communicate with a judge relating to the merits of a case. Model Code of
Professional Responsibility DR 7-110 (B) (1970).
Regarding your second question, it is our opinion that you may preside as judge in cases
involving other members of the prosecuting attorney's staff. The fact that a judge's spouse is
disqualified from prosecuting cases in his or her spouse's courtroom is not imputed to fellow
prosecuting attorneys. However, we recommend that you disclose to all the parties and lawyers in
cases brought by the prosecutor's office that your spouse is a staff member of that office.
Under such circumstances, disqualification might be necessary to insure the proper
administration of justice and/or public confidence in the legal system. If your impartiality might
reasonably be questioned in a proceeding then you should disqualify yourself. Code of Judicial
Conduct Canon 3C(1) (1982). "Any conduct that would lead a reasonable man knowing all the
circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a
basis for the judge's disqualification." E. W. Thode, Reporter's Notes to Code of Judicial Conduct
60 (1973).
Based on the foregoing, it is our opinion, and you are so advised that, where a judge and his
or her spouse, as a prosecuting attorney, practice in the same county, they are precluded from
participating in the same cases. The judge may however, hear cases brought by other prosecuting
attorneys in the county. Conversely, the prosecuting attorney may appear

Op. 87-024 3
before other judges in the county. However, both spouses should keep in mind the potential for
disqualification based on the aforementioned provisions in the Code of Professional Responsibility
and Code of Judicial Conduct.
This opinion is advisory in nature, is based upon the facts as presented and is limited
to questions arising under the Code of Judicial Conduct.
James W. Mason, Esq.
Secretary
Board of Commissioners
on Grievances & Discipline
of the Judiciary