Ohio Board Advisory Opinion Op. 21-06

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 2021-06
Issued August 6, 2021
Withdraws Adv. Op. 95-03 and Adv. Op. 2007-02
Judicial Disqualification When Receiving Fees or Other Payments From Former Law
Firm
SYLLABUS: A judge may accept fees or other payments from his or her former law firm
for fees earned for performing legal services before the judge assumed public office. A
judge must recuse himself or herself from cases in which lawyers from his or her former
law firm appear as counsel and the judge is receiving or anticipates receiving fees or other
payments from the firm. A judge should consider the nature of the prior professional
relationship, the size of the judge’s former law firm, and the time interval since the
relationship concluded, when determining an appropriate period of time before hearing
a case involving a former partner. A judge may not continue to participate in a law firm’s
partnership for purposes of receiving fees or other payments from the firm.

65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov
PATRICIA A. WISE
CHAIR
RICHARD A. DOVE
DIRECTOR
HON. D. CHRIS COOK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL
OPINION 2021-06
Issued August 6, 2021
Withdraws Adv. Op. 95-03 and Adv. Op. 2007-02
Judicial Disqualification When Receiving Fees or Other Payments From Former Law
Firm
SYLLABUS: A judge may accept fees or other payments from his or her former law firm
for fees earned for performing legal services before the judge assumed public office. A
judge must recuse himself or herself from cases in which lawyers from his or her former
law firm appear as counsel and the judge is receiving or anticipates receiving fees or other
payments from the firm. A judge should consider the nature of the prior professional
relationship, the size of the judge’s former law firm, and the time interval since the
relationship concluded, when determining an appropriate period of time before hearing
a case involving a former partner. A judge may not continue to participate in a law firm’s
partnership for purposes of receiving fees or other payments from the firm.
QUESTIONS PRESENTED:
1). Is it proper for a new judge to accept fees from his or her former law firm
for legal services provided by the judge prior to taking office?
2). May a newly elected judge hear cases advocated by lawyers from the
former firm while the judge is accepting fees or other payments, from the firm?
3). Is it proper for a new judge to receive retirement benefits from a former law
firm pursuant to a partnership agreement through which the judge is paid a percentage
of the legal fees earned by other attorneys in the firm for providing legal services to the

Op. 2021-06 2
judge’s former clients while the judge was with the law firm and during an agreed upon
number of years following the judge’s departure from the law firm.
4). Is there a specific period of time after a judge leaves a law firm partnership
in which a judge would be prohibited from hearing cases advocated by a former law
partner?
5). May law firm partners and a newly elected judge continue their law
partnership for the sole purpose of receiving fees or other payments from the firm?
APPLICABLE RULES: Jud.Cond.R. 1.2, 2.11, 3.10, 3.11, 3.15 , Prof.Cond.R. 7.5
OPINION:
Question 1
When a new judge assumes office, the winding up of his or her former law practice
may involve a degree of financial entanglement with the judge’s former law firm that
implicates the judge’s obligations under the Code of Judicial Conduct. As often the case,
the judge may have earned legal fees prior taking office, but the fees have not been
collected or received by the former law firm. The Code of Judicial Conduct prohibits a
judge from practicing law [See Jud.Cond.R. 3.10] but does not prevent a judge from
accepting outstanding fees from his or her former law firm after taking office. A judge
transitioning from private practice is entitled to accept payments reflecting a flat fee or
the number of hours billed at an agreed upon hourly rate for legal services performed.
Contingent fees may also be paid to a judge once the contingency occurs, based upon
quantum meruit for services performed prior to leaving the former law firm. See Reid,
Johnson, Downes, Andrachik & Webster v. Lansberry (1994), 68 Ohio St.3d 570 (quantum
meruit proper basis for determining fee for services rendered by former law firm counsel).
Any income received by a judge from a former law firm must be reported by the judge
on his or her annual financial disclosure statement. Jud.Cond.R. 3.15, R.C. §102.02.
Questions 2 and 3
Jud.Cond.R. 2.11(A) requires a judge to recuse himself or herself from cases when
“the judge’s impartiality might be reasonably questioned.” When a judge anticipates the
receipt of fees or other payments from his or her former firm, the application of

Op. 2021-06 3
Jud.Cond.R. 2.11(A) restricts the judge’s ability to hear cases when the lawyers of the
former firm are counsel for a party. The continued receipt by a judge of fees from a former
firm would cause a reasonable and objective observer to question the judge’s impartiality
in a case. See In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359 (a judge’s
participation in a case presents an appearance of impropriety if “a reasonable and
objective observer would harbor serious doubts about the judge’s impartiality.”). The
judge’s recusal in such a scenario avoids the appearance of impropriety that would occur
if a law firm with existing financial ties to a judge appears before the judge.
Disqualification is additionally required when the judge “has a personal bias or
prejudice concerning a party or a party’s lawyer.” Jud.Cond.R. 2.11(A)(1). Waiver of
disqualification, in most circumstances, will not be appropriate while a judge is
receiving fees or other payments from a former law firm due to the potential for
personal bias toward the lawyers in a firm with which the judge still maintains financial
ties. Waiver of disqualification is never permitted when personal bias or prejudice of
the judge exists. Jud.Cond.R. 2.11(C). Consequently, a judge should carefully consider
whether he or she harbors any bias toward the lawyers of the former law firm
because of the anticipated or continued receipt of fees or other payments before
employing the waiver of disqualification process in Jud.Cond.R. 2.11(C).
A type of payment a judge receives after assuming the bench may be
characterized by the law firm as retirement benefits. In the question presented, the
judge would receive a percentage of fees earned on legal services provided by other
lawyers to the judge’s former clients during an agreed upon period of time after
retirement. Neither the Code of Judicial Conduct nor the Rules of Professional
Conduct specifically prohibits an agreement under these terms. However, due to the
requirement that a judge recuse from cases under such circumstances, any retirement
agreement should not provide for the payment of retirement income in perpetuity.
As soon as practicable, a judge should divest himself or herself from financial
interests that would require frequent disqualification. Jud.Cond.R. 3.11.
Question 4
Judicial recusal from a case in which a former law partner appears as counsel is
not expressly mandated by the Code of Judicial Conduct. See also ABA Inf. Op. 87-2524
(“a judge is not disqualified from trials in which the judge’s former associate participates

Op. 2021-06 4
as counsel solely as a result of their prior association.”). Nor does the Code establish a
specific period of time for a judge to recuse from cases advocated by a judge’s former law
partner. However, the Chief Justice has reviewed the same question in a line of
disqualification cases examining prior professional relationships between judges and
lawyers and has held that the prior relationship is not grounds for disqualification when
it ended some years ago. In re Disqualification of Ward, 100 Ohio St.3d 1211, 2002-Ohio-
7467 (no disqualification when professional relationship ended seven years before the
affidavit was filed). See also In re Disqualification of Cross (1991), 74 Ohio St.3d 1228, 657
N.E.2d 1338 (relationship as law partners ended six years before the affidavit was filed);
In re Disqualification of Vercillo, 137 Ohio St.3d 1237, 2013-Ohio-5763 (prior professional
relationship ended 20 years before hearing matter involving former partner).
A new judge should carefully consider the appropriate amount of time before
hearing a case involving a former partner as counsel. A decision should be made by a
judge in light of the existence of any personal bias or prejudice, whether his or her
impartiality could be questioned by a reasonable and objective observer, and the judge’s
obligation to maintain public confidence in the judiciary. Jud.Cond.R. 1.2. In general,
questions concerning impartiality may depend on the size of the judge’s former firm and
the nature of the former partnership. Recusal may be more necessary and extend for a
longer period of time where the law firm is small and the partnership was close, as
compared to a situation in which the judge practiced in a large firm with multiple offices
and practice groups and had limited contact with many of the firm’s partners. Another
factor is the time that has elapsed since the termination of the professional relationship
between the judge and a former partner. For example, a period of six months to one year
may be a sufficient and appropriate period of time before a judge hears cases involving a
former partner as counsel. However, a judge may opt to refrain from hearing cases
involving his former firm or partners for a longer period of time to place some temporal
distance from the prior relationship and avoid any reasonable appearance of impropriety.
Question 5
As previously noted, a newly elected or appointed judge is required to cease the
practice of law upon taking office. Jud.Cond.R. 3.10. Consequently, a judge may not
continue to participate in a law firm’s partnership for purpose of receiving fees or other
payments from the firm. The Board has previously opined that a judge who maintains

Op. 2021-06 5
any interest in their former law practice, no matter how it is structured, creates the
appearance of impropriety. Adv. Op. 89-17. Additionally, a law firm partnership may
not include the name of a public official in the firm’s name after the former partner
assumes public office. Prof.Cond.R. 7.5(c).