Ohio Board Advisory Opinion Op 91-008

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 91-8
Issued April 12, 1991
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the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: When an attorney is employed by, associated with or in partnership with a judge's
spouse, disqualification of that judge from a proceeding in which the attorney appears before the
judge is not automatically required by Canon 3 C of the Code of Judicial Conduct. Whether the
interest of the judge or judge's spouse could be substantially affected by the outcome of such a
proceeding or whether impartiality might reasonably be questioned would need to be determined on
a case by case basis. However, a judge should disqualify herself from a proceeding in which a
lawyer in the proceeding rents office space in real estate co-owned by the judge and the judge's
spouse.
OPINION: We have before us a request for an advisory opinion on the following questions
regarding judicial disqualification:
1. Whether a Probate/Juvenile judge should disqualify herself in a proceeding in
which an attorney appears as a lawyer, a party, or a fiduciary to a party in the
proceeding, when the attorney is either employed by, associated with, or in
partnership with the judge's spouse;
2. Whether a Probate/Juvenile judge should disqualify herself from a proceeding in
which an attorney in the proceeding rents office space in a building co-owned by
the judge and the judge's spouse?
Canon 3 of the Code of Judicial Conduct (Judicial Code) mandates that "[a] judge should perform
the duties of his office impartially and diligently." In order to do so, a judge must, at times,
disqualify herself from a proceeding. Specific rules governing judicial disqualification are
contained within Canon 3 C of the Judicial Code. Canon 3 C (1) sets forth a general standard of
disqualification, followed by four specific disqualification standards identified in 3 C (1) (a,b,c,d).
Withdrawn by Adv. Op. 2023-05

Op. 91-8 2
The general standard of disqualification in Canon 3 C (1) is that "[a] judge should disqualify
himself in a proceeding in which his impartiality might reasonably be questioned." Under this
general standard, "[a]ny 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. Thode, Reporter's Notes to Code of Judicial Conduct 60 (1973). The
reporter explains that "impropriety or the appearance of impropriety in violation of Canon 2 that
would reasonably lead one to question the judge's impartiality in a given proceeding clearly falls
within the scope of the general standard [enunciated in Canon 3 C], as does participation by the
judge in the proceeding if he thereby creates the appearance of a lack of impartiality.” Id. 61.
Under the four specific disqualification standards a judge's impartiality might reasonably be
questioned in instances when:
(a) he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(b) he served as a lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a lawyer
concerning the matter, or the judge or such lawyer has been a material
witness concerning it;
(c) he knows that he, individually or as a fiduciary, or his spouse or minor child
residing in his household, has a substantial financial interest in the subject
matter in controversy or in a party to the proceeding, or any other interest
that could be substantially affected by the outcome of the proceeding;
(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:
(i) is a party to the proceeding, or an officer, director, or trustee
of a party;

Op. 91-8 3
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest that could be
substantially affected by the outcome of the proceeding;
(iv) is to the judge's knowledge likely to be a material witness in
the proceeding.
Code of Judicial Conduct 3 C (1) (a,b,c,d).
None of these criteria addresses the situation where a lawyer in a proceeding is affiliated with a law
practice of the judge's spouse. However, commmentary to the Judicial Code indicates that a judge's
recusal is not automatically required in proceedings involving the firm of a judge's spouse.
The fact that a lawyer in a proceeding is affiliated with a law firm with which a
lawyer-relative of the judge is affiliated does not of itself disqualify the judge.
Under appropriate circumstances, the fact that "his impartiality might reasonably be
questioned" under Canon 3 C (1), or that the lawyer-relative is known by the judge
to have an interest in the law firm that could be "substantially affected by the
outcome of the proceeding" under Canon 3C(1) (d) (iii) may require his
disqualification.
Code of Judicial Conduct Canon 3 C (1) (d) commentary.
The Commentary suggests that conflicts created by a lawyer being affiliated with a law firm of a
lawyer/relative of the judge should be analyzed under the Canon 3 C (1) general objective standard
of whether "impartiality might reasonably be questioned" and under the 3 C (1) (d) (iii) standard
that the judge or spouse "is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding."

Op. 91-8 4
This Board has issued several opinions regarding judicial disqualification. As to relatives
appearing before the judge the Board has opined that a judge should disqualify himself from any
proceeding in which his son or daughter is a lawyer, Ohio SupCt, Op. 87 -22 (1987); a judge should
recuse himself when the judge's spouse is a party to or a lawyer in a proceeding, Ohio SupCt, Op.
87-24 (1987); a referee should disqualify herself where her spouse is acting as a lawyer in the
proceeding, Ohio SupCt, 87-38 (1987); an acting judge cannot hear cases when a lawyer is related
within the third degree to the appointing judge, Ohio SupCt, Op. 88-5 (1988); a judge must
disqualify himself when the judge's brother-in-law appears as a party or as a lawyer, Ohio SupCt,
Op. 89-10 (1989); a judge should be disqualified when the judge's spouse is likely to be a material
witness in a proceeding before the judge, Ohio SupCt, 89-19 (1989); a probate judge is disqualified
from presiding over any matters where one of the lawyers is related within the third degree of
relationship. Ohio SupCt, Op. 90-17 (1990).
Only once has the Board addressed the issue of disqualification in proceedings involving the firm
of a full-time referee's spouse. Ohio SupCt, 87-38 (1987). While acknowledging that the
Commentary to Canon 3 C (1) (d) (ii) of the Judicial Code did not require automatic
disqualification, the Board stated that "the fact that the referee's impartiality might reasonably be
questioned under Canon 3 C (1) would be enough to require her disqualification." Id.
Other ethics committees have addressed the issue of judicial disqualification in proceedings
involving appearances by a lawyer affiliated with the firm of the judge's spouse. If a probate judge
removes herself from all matters in which her spouse or a member of his firm has an interest as
attorney, fiduciary, or client there would be no violation of the Code of Judicial Conduct or the
Code of Professional Responsibility. Ohio State Bar Ass'n, Informal Op. 84-2 (1984). A judge
may hear a case conducted by an attorney who is a member of the same law firm as the judge's
spouse provided the judge discloses the relationship to all parties to the proceeding and the parties
request the judge to continue. State Bar of Michigan, Op. CI-605 (1981). A judge is not required
to disqualify himself because a partner or associate of a relative is a lawyer in the proceeding.
North Carolina Bar Ass'n, Op. CPR 367 (1985).

Op. 91-8 5
No bright line separates practice arrangements which do and do not create conflicts requiring
judicial disqualification. A critical question is whether the spouse's employment by, association
with, or partnership with the attorney creates a financial interest between the attorney in the
proceeding and the judge's spouse. It is the Board's opinion that disqualification of a judge from a
proceeding in which an attorney employed by, associated with or in partnership with a judge's
spouse, appears before the judge is not automatically required by Canon 3 C of the Judicial Code.
Whether the interest of the judge or judge's spouse could be substantially affected by the outcome
of a proceeding or whether impartiality might reasonably be questioned would need to be
determined on a case by case basis.
If the judge knows her spouse has an interest that could be substantially affected by the outcome of
the proceeding then the judge should disqualify herself under Canon 3 C (1) (d) (iii) of the Judicial
Code. Further the judge should disqualify herself under 3 C (1) if her impartiality might reasonably
be questioned by a reasonable person knowing all the circumstances.
To prevent hardship to litigants that could be brought about by the delay in obtaining another judge
to replace a disqualified judge, Canon 3 D of the Judicial Code offers full disclosure and waiver as
an alternative to disqualification when the disqualification is necessitated by an economic interest
or a family relationship. E. Thode, Reporter's Notes to Code of Judicial Conduct 71 (1973). Under
the Judicial Code,
[a] judge disqualified by the terms of Canon 3C (1) (c) or Canon 3C (1) (d) may,
instead of withdrawing from the proceeding, disclose on the record the basis of his
disqualification. If based on such disclosure, the parties and lawyers, independently
of the judge's participation, all agree in writing that the judge's relationship is
immaterial or that his financial interest is insubstantial, the judge is no longer
disqualified, and may participate in the proceeding. The agreement, signed by all
parties and lawyers, shall be incorporated in the record of the proceeding.
Code of Judicial Conduct Canon 3 D (emphasis added).

Op. 91-8 6
A judge should, however, disqualify herself from a proceeding when an attorney in the proceeding
rents office space from both the judge and judge's spouse who co-own the office building.
The ABA Committee on Ethics and Professional Responsibility has expressed the opinion that so
long as the judge maintains an interest in a building and rents space to lawyers, the judge should
not preside in matters presented by these lawyers. Informal Op. 1070 (1969). Ethics committees in
several states have expressed similar positions. A judge who owns real estate with a lawyer must
disqualify himself from proceedings in which partners of the co-owner represent clients, unless
there is waiver of disqualification after full disclosure. Virginia State Bar, Op. 552 Rev. (1983,
1985). A lawyer, his partners, and associates, may not appear in court before a district judge with
whom the lawyer jointly owns and manages real estate. State Bar of Michigan, Op. CI-1091
(1985). When a judge is a firm's landlord and when the son of the judge is "of counsel" to the firm,
the judge should decline to hear a matter argued by lawyers of that firm. Maryland State Bar Ass'n,
Op. 82-47(1982).
The personal and financial nature of a landlord-tenant relationship between a judge and lawyer
creates the appearance of impropriety, suggests impartiality and may cause prejudice to parties
appearing before the judge. Thus, in answer to your question, it is the opinion of the Board that
under the 3 C general standard of impartiality and the 3 C (1) (d) (iii) interest standard, a judge
should disqualify herself from a proceeding in which a lawyer in the proceeding rents office space
in real estate co-owned by the judge and the judge's spouse.
This is an informal, non-binding advisory opinion based on the facts presented and limited to
questions arising under the Code of Judicial Conduct.