Ohio Board Advisory Opinion Op 91-013

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 91-13
Issued June 14, 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[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the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: A judge should disqualify himself from a proceeding when his impartiality might
reasonably be questioned and or when he has personal bias or prejudice toward a witness. Judicial
disqualification is not automatically required by the Code of Judicial Conduct when a health care
professional, who currently provides marital counseling to the judge and his wife, appears before
the judge as a significant witness in a trial; nor when a health care professional who in the past
performed psychological testing and marital counseling with the judge and his wife, appears before
the judge as a significant witness or when his partners or associates appear; nor when a psychiatrist
who has never treated the judge but who currently provides counseling and therapy with
psychotropic drugs to the judge's wife, appears before the judge as a significant witness. Though,
in each of these instances, a reasonable person knowing all the circumstances could conclude that
the judge's impartiality might reasonably be questioned; thus, the judge may need to disqualify
himself under the Canon 3 C general standard of impartiality and possibly under the Canon 3 C (1)
(a) personal bias or prejudice standard. Where a judge is the trier of fact or where competency of
the witness is in question, the need for disqualification is more apparent. However, it is the judge
who must make the determination of whether he has personal bias or prejudice toward a witness
and whether a reasonable person knowing all the circumstances could conclude that impartiality
might reasonably be questioned.
OPINION: We have before us a request for an advisory opinion regarding judicial disqualification
in instances when a healthcare professional appears as a witness before a judge with whom a
professional relationship exists or has existed. The questions raised are as follows:
1. Whether a judge should disqualify himself from a proceeding
when a health care professional, who currently provides marital
counseling to the judge and his wife, appears before the judge as
a significant witness in a trial;

Op. 91-13 2
2. Whether a judge should disqualify himself from a proceeding
when a health care professional, who in the past performed
psychological testing and marital counseling with the judge
and his wife, now appears before the judge as a significant
witness, or when the health care professional's partners or
associates appear;
3. Whether a judge should disqualify himself from a proceeding
when a psychiatrist, who has never provided care to the judge
but who currently provides counseling and therapy with
psychotropic drugs to the judge's wife, appears before the
judge?
As to all the above questions the requester inquires whether the obligation to disqualify or disclose
would cease at some point in time.
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 himself 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.
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 "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 set forth in Canon 3 C (1) (a,b,c,d), 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;

Op. 91-13 3
(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;
(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).
Thus, under the general disqualification standard in Canon 3 C of the Judicial Code, a judge should
disqualify himself in any instance where his impartiality might reasonably be questioned. Also, a
judge should disqualify himself under any of the specific standards identified by Canon 3 C (1)
(a,b,c,d,).
Although the specific disqualification standards do not directly address the questions raised, they
do provide some guidance. Under Canon 3 C (1) (a), a judge should disqualify himself in instances
when he has a personal bias or prejudice concerning a party. Although a witness may not
technically be considered a party to a proceeding, through his role in the proceeding, a key witness
may be closely associated with a party. Thus, bias regarding a witness could result in bias
concerning a party.

Op. 91-13 4
Under Canon 3 C (1) (d) (iv), a judge should disqualify himself in instances when he, his spouse, or
a person within the third degree of relationship to either of them is to the judge's knowledge likely
to be a material witness in the proceeding. See Ohio SupCt, Op. 89-19 (1989), Ohio State Bar
Ass'n, Op.85-2 (1985). This provision, although not squarely on point to the issue being addressed
in this opinion, suggests that bias toward a witness is a potential reason for disqualification.
The general standard of impartiality under Canon 3 C (1) also applies to the questions raised. Since
marital discord and therapy create a highly emotional situation, no matter how earnest the judge,
there is an obvious danger that his impartiality might reasonably be questioned by a reasonable
person knowing all the circumstances when a marital therapist is a significant witness.
Of further note is the language in the Judicial Code that a judge "should" disqualify rather than
"shall" disqualify suggesting that it is difficult to define instances requiring automatic
disqualification because so many subjective factors are involved. Also of note is the fact that the
Board could find no other ethics opinions directly addressing the questions raised by this request.
The Board's opinion is that when a judge has personal bias or prejudice toward a significant witness
the judge should disqualify himself from a proceeding. Beyond that broad statement, it is difficult
to state a precise rule regarding when a judge should disqualify himself from a proceeding.
However, when a social worker or other professional who currently provides marital counseling to
the judge and his wife, appears before the judge as a significant witness in a trial, the Board is of
the opinion that a reasonable person knowing all the circumstances could conclude that the judge's
impartiality might reasonably be questioned; thus, the judge may need to disqualify himself under
the Canon 3 C general standard of impartiality and possibly under the Canon 3 C 1 (a) personal bias
or prejudice standard. Where a judge is the trier of fact or where competency of the witness is in
question, the need for disqualification is more apparent. Where the judge is not the trier of fact or
where competency of the witness is not at question, it would appear less clear. However, it is the
judge who must make the determination of whether he has personal bias or prejudice toward a
witness and whether a reasonable person knowing all the circumstances could conclude that
impartiality might reasonably be questioned.

Op. 91-13 5
When a psychologist or other professional who in the past performed psychological testing and
marital counseling with the judge and his wife now appears before the judge as a significant
witness, judicial disqualification is also not automatically required but depends on factors such as
whether there is personal bias or prejudice as a result of the past therapy or whether a reasonable
person knowing all the circumstances would question the judge's impartiality. Similarly, judicial
disqualification would not automatically be required for partners or associates of a psychologist or
other therapist who in the past performed psychological testing or marital counseling with the judge
and his wife. Nor is automatic disqualification required when a psychiatrist, psychologist or other
professional who has never treated the judge but who currently provides therapy to or
psychological testing on the judge's wife, appears before the judge as a significant witness.
It is also the Board's opinion that mere disclosure to counsel of the current or past relationship does
not alleviate the ethical conflict for the judge. Remittal of disqualification is authorized by Canon 3
D of the Judicial Code but requires disclosure on the record and written agreement by the parties
and lawyers, independent of the judge's participation and applies only to a judge disqualified by the
terms of Canon 3 C (1) (c) (economic interest) or 3 C (1) (d) (family relationship). See E. Thode,
Reporter's Notes to Code of Judicial Conduct 71 (1973).
The final question as to whether the obligation to disqualify or disclose would cease at some point
in time is difficult to answer definitively. The ABA Committee on Ethics and Professional
Responsibility addressed this question in the context of a judge's disqualification where a former
associate appears as counsel. ABA Comm. on Ethics and Professional Responsibility, Informal
Op. 87-1524 (1987). The ABA committee stated that specifying a time interval after which a
judge's impartiality may not reasonably be questioned depends on many factors including the
closeness of the professional relationship and the extent of any continuing personal or social
relationship in the interval since the professional relationship ceased. Id. Thus, the Board is unable
to answer at what point in time the obligation to disqualify would cease other than to say that it
would occur when the judge's impartiality would not be questioned by a reasonable man knowing
the circumstances and when there were no other reasons requiring disqualification.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, non-binding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio,
the Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.