Ohio Board Advisory Opinion Op 87-003

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 87-003
[Withdrawn- by Board on Dec. 5, 1997 due to Op 89-29]
SYLLABUS: A judge may serve as a member of the Board of Trustees for an incorporated not-
for-profit foundation, PROVIDED such activity does not create a conflict of interest
with the judge's official function, does not involve solicitation of funds by the judge
or by others using the judge's name, and does not violate the mandatory standards
set forth in the Code of Judicial Conduct including avoiding even the appearance of
impropriety.
TO: Honorable David D. Mattes, Judge Clark County Juvenile Center
FROM: The Board of Commissioners on Grievances and Discipline of the Judiciary
DATE: May 18, 1987
We have before us your request for our opinion on whether you, as probate-juvenile judge,
can serve on the Board of the Clark County Mental Health Foundation (the "Foundation"). It is our
understanding that the Foundation's primary goal is fund-raising, with the proceeds going to the
various mental health agencies in Clark County. In addition, as indicated in your request letter, as
probate-juvenile judge, you hear cases in which agencies to be supported by the Foundation are
directly or indirectly involved.
At the outset, before specifically addressing disqualification and conflicts, let us direct you
to Canon 2 of the Code of Judicial Conduct as adopted in Ohio. Under Canon 2, a judge must not
only avoid impropriety but must also avoid the appearance of impropriety. "It is of vital
importance that the litigant should believe that he will have a fair trial." State ex rel v. Marshall,
123 Ohio St. 586, 587 (1931). Similarly, a formal opinion issued by the ABA Committee on
Professional Ethics stated: “[a]ll judges of the lowest as well as highest courts must in all their
personal business and social intercourse act not only in a manner that is lawful and proper but one
which gives the impression and appearance to the public that it is proper." ABA Standing
Committee on Professional Ethics, Formal Op. 322 (1969).

Op. 87-003 2
Therefore, if being a member of the Foundation's Board in any way lends the appearance of
impropriety to your judicial duties then you should not serve on the Board or, in the alternative,
step down from the bench. "Because of the position of the courts and because the needs of the
citizens to understand that the courts are above reproach, the lives of our judges are far more
circumscribed than the rest of us." Id. at 5.
Canon 3C(1)(d)(i) of the Code of Judicial Conduct requires a judge to disqualify himself if
he is a party or a trustee of a party to the proceeding. Code of Judicial Conduct, Canon 3C(1)(d)(i)
(1973). Thus, if the Clark County Mental Health Foundation were a party in any capacity in your
courtroom and you were a trustee of the Foundation then your disqualification as judge would
become a necessity.
Canon 5, which is relevant to your particular situation is entitled, "[a] judge should regulate
his extra-judicial activities to minimize the risk of conflict with his judicial duties." Canon 5B
states:
B. Civic and Charitable Activities. A judge may participate in civic
and charitable activities that do not reflect adversely upon his
impartiality or interfere with the performance of his judicial duties.
A judge may serve as an officer, director, trustee, or non-legal
advisor of an educational, religious, charitable, fraternal, or civic
organization not conducted for the economic or political advantage of
its members, subject to the following limitations:
(1) A judge should not serve if it is likely that the organization will
be engaged in proceedings that would ordinarily come before him or
will be regularly engaged in adversary proceedings in any court.
(2) A judge should disqualify himself in any case in which the
decision could affect any organization which he serves as either an
officer or member of the board.

Op. 87-003 3
(3) A judge should not solicit funds for any educational, religious,
charitable, fraternal, or civic organization, or use or permit the use of
the prestige of his office for that purpose, except he may participate
as a member in solicitations limited to members of an educational,
religious, charitable, fraternal or civic organization of which he is a
member, and he may be listed as an officer, director, or trustee of
such an organization. He should not be a speaker or the guest of
honor at an organization's fund raising events, but he may attend such
events. Code of Judicial Conduct, Canon 5B (1982).
Based on the information contained in your request letter, it is unclear whether your
particular situation violates Canon 5B. This Canon allows judges to participate in activities, such
as the Clark County Mental Health Foundation, provided such activity does not interfere with the
judges' proper and expeditious administration of his or her official function. However, if it is likely
the Foundation is, or will become involved, or regularly engaged, in proceedings in your courtroom
then a conflict would arise. In this regard, it was stated in an ABA ethics opinion that "[i]f
conflicting obligations in fact exist and cause interference with the judge's devotion to his judicial
duties, then he must choose between the two positions and forego one or the other." ABA
Committee on Ethics and Professional Responsibility, Informal Op. C-706 (1963).
In addition, Canon 5B(2) of the Code of Judicial Conduct requires a judge to disqualify
himself from any case where his decision could affect any organization which he serves as an
officer or board member. Therefore, as Probate-Juvenile Judge and a Foundation board member,
you must disqualify yourself from any case which would affect the Foundation. It has been held
however, that a judge who is an officer of a non-profit corporation interested in a case is not
disqualified to hear the case. In Re Hopkins' Will, 6 Dem. 12, 19 NYSR 528 (1888). But see e.g.,
Askounes' Liquor License Case, 144 Pa. Super. 293, 19 A.2d 846 (1941).

Op. 87-003 4
The greatest difficulty with you becoming a board member of the Foundation relates to its
prime objective of fund-raising as noted in the by-laws (Article 11, Section 1). Canon 5B(3) of the
Code proscribes solicitation of funds by any judge. The ABA Standing Committee on Professional
Ethics has prohibited judges from becoming involved in solicitation of funds for charitable
purposes. ABA Standing Committee on Professional Ethics, Formal Op. 322 (1969). Further, the
ABA Committee has held that a judge should not permit the use of his name for the purpose of
solicitation of funds. ABA Committee on Ethics and Professional Responsibility, Formal Op. 238
(1942).
The basic objective behind prohibiting judges from soliciting funds for organizations is to
eliminate the use or appearance of use of the power and prestige of the judicial office to persuade
others to contribute funds. ABA Committee on Ethics and Professional Responsibility, Informal
Op. 603 (1962). If, as a member of the Foundation's Board of Trustees, one is required to solicit
funds or permit use of his or her name in any fund-raising effort then, judges would be prohibited
from accepting such a position.
In regard to extra-judicial activity, the ABA Committee has held:
Although there may be no inherent impropriety in any specific act
performed by a judge, a person in this position must give serious
thought to, the weight of his judicial position and dignity and is
cautioned against permitting any person to throw onto the scales of
justice the weight of his judicial position. . . . [T]he public must have
absolute faith in the competence and integrity of the courts and must
have complete belief that the places of justice are wholly untainted
and untarnished by scandal or suspicion. ABA Standing Committee
on Professional Ethics, Formal Op. No. 322 (1969).

Op. 87-003 5
In conclusion, "[a] judge should not undertake any obligation or enter into any relationship
of any kind or nature whatsoever which might in any way be inconsistent with his duties and
obligations as a judge." Id. at 7. Therefore, in light of the considerations discussed herein, it is our
opinion, and you are so advised, that membership on the Foundation's Board of Trustees might well
create a conflict with your duties as Probate-Juvenile Judge in Clark County.
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
Grievances and Discipline
of the Judiciary of
The Supreme Court of Ohio