Can an Ohio judge appoint a relative to represent indigent criminal defendants?

Plain-English summary

The Board addressed whether a judge could appoint an attorney related within the third degree of consanguinity to represent indigent parties indicted by a grand jury. Appointments are governed by both the Code of Judicial Conduct and Ohio Ethics Law, so the Board analyzed both.

Under the Code of Judicial Conduct, the Board adopted the more restrictive of two readings of Canon 3B(4), applying a degree-of-relationship test rather than a case-by-case merit inquiry, because a fixed standard is less subjective and more uniform. Surveying sister-state opinions and a Cleveland Bar opinion, it set the third degree of consanguinity as the standard, consistent with the Code's use of that degree for disqualification. It concluded that appointing a relative within the third degree of the judge or the judge's spouse is improper under Canon 2B and Canon 3B(4) as an exercise of nepotism, while noting that occasional exceptions might be proper in extraordinary circumstances in sparsely populated jurisdictions with few attorneys.

Under Ohio Ethics Law, the Board concluded, following Opinion 93-2, that the appointment is a public contract and that the relative's compensation is a prohibited interest under R.C. 2921.42(A)(1), using the family-member definition from Opinion 80-001. It noted that the safe harbor in R.C. 2921.42(C) might apply in the same extraordinary, sparsely populated circumstances if all four of its conditions are met. The opinion addressed appointments by a single judge, not by a collective or majority vote of a multi-judge court.

Currency note

The Ohio Board flags this opinion as a "Former CJC Opinion" that interprets the former Ohio Code of Judicial Conduct, and as "Not current" in light of subsequent rule amendments to Canons 1 through 6 of the Ohio Code of Judicial Conduct effective May 1, 1997.

This opinion issued in 1993. The former Ohio Code of Judicial Conduct was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct and Ohio Ethics Law before relying on any specific provision mentioned here.

Common questions

Q: Could a judge appoint a relative as appointed counsel for indigents?

A: No, if the attorney was related within the third degree of consanguinity to the judge or the judge's spouse. The Board treated it as nepotism creating an appearance of impropriety under Canon 2B and impairing impartiality under Canon 3B(4).

Q: Was there any exception?

A: The Board noted that occasional exceptions might be proper in extraordinary circumstances in sparsely populated jurisdictions with few attorneys, and that the R.C. 2921.42(C) statutory safe harbor might apply if all four of its conditions were met.

Q: Did Ohio Ethics Law also prohibit it?

A: Yes. Following Opinion 93-2, the Board concluded the appointment is a public contract and the relative's compensation a prohibited interest under R.C. 2921.42(A)(1), using the family-member definition from Opinion 80-001.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct, Canon 2B and Canon 3B(4) (appointments based on merit, eliminating nepotism and favoritism), in service of the broad mandates of Canons 2 and 3, together with Ohio Ethics Law, R.C. 2921.42(A)(1) and the safe harbor in R.C. 2921.42(C). The Board adopted a third-degree-of-consanguinity standard for nepotism.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 2B, Canon 3B(4)

Statutes:

• Ohio Rev. Code Ann. Sections 2921.42(A)(1), 2921.42(C), 2921.01(A) (Baldwin Supp. 1992)

Other opinions cited:

• Ohio Bd. of Comm'rs on Grievances and Discipline, Op. 93-2 (1993); Op. 89-001 (1989)
• Cleveland Bar Ass'n, Op. 110 (1974)
• Ohio Ethics Commission Op. 80-001 (1980)
• Judicial-ethics opinions of Alabama, Florida, Georgia, Kansas, Kentucky, Missouri, South Carolina, and Texas on appointment of relatives

See also

• Ohio BPC Op. 1993-002: Judge Appointing an Attorney Employed by the Judge's Son
• Ohio BPC Op. 1989-010: Judge Disqualification, Third-Degree Relative
• Ohio BPC Op. 1989-001: Court Nepotism, Judge's Spouse as Employee
• Ohio BPC Op. 1987-022: Part-Time Judge, Law Partners and Relatives

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-93-004.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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 93-4
Issued April 16, 1993
[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: It is improper under Ohio's Code of Judicial Conduct for a judge to appoint an
attorney to represent indigent parties indicted by the grand jury, when the attorney is related to the
judge or the judge's spouse within the third degree of consanguinity. The appointment could be
viewed as an exercise of nepotism which creates the appearance of impropriety under Canon 2B
and the appearance of impartiality under Canon 3B (4). Occasional exceptions to this advice might
be proper under extraordinary circumstances in sparsely populated jurisdictions with few attorneys.

Further, it is improper under Ohio Ethics Law, Section 2921.42 of the Ohio Revised Code, for a
judge to appoint an attorney to represent indigent parties indicted by the grand jury, when the
attorney is a member of the judge's family which includes, but is not limited to: 1) grandparents; 2)
parents; 3) spouse; 4) children, whether dependent or not; 5) grandchildren; 6) brothers and sisters;
or 7) any person related by blood or marriage and residing in the same household. However,
Section 2921.42 (C) provides a safe harbor from the restriction of Section 2921.42 (A) which might
be applicable in extraordinary circumstances in sparsely populated jurisdictions with few attorneys
if the conditions within Section 2921.42 (C) (1) through (4) are met.

OPINION: This opinion addresses whether it is proper for a judge to appoint an attorney to
represent indigent parties indicted by the grand jury, when the attorney is related to the judge
within the third degree of consanguinity. Appointments by judges are regulated by both the Code
of Judicial Conduct and Ohio Ethics Law. Thus, the question presented requires interpretation
under two authorities--the Code of Judicial Conduct and Ohio Ethics Law and related statutes.

Code of Judicial Conduct

Canon 2B, Canon 3B (4), and the commentary to Canon 3B (4) of the Code of Judicial Conduct are
set forth below.

Canon 2B A judge should not allow his (her) family, social or other relationships to
influence his (her) judicial conduct or judgment. He (she) should not lend the
prestige of his (her) office to advance the private interests of others; nor should he
(she) convey or permit others to convey the impression that they are in a special
position to influence him (her). He (she) should not testify voluntarily as a character
witness.

Canon 3B(4) A judge should not make unnecessary appointments. He should
exercise his (her) power of appointment only on the basis of merit, eliminating
nepotism and favoritism. He (she) should not approve compensation of appointees
beyond the fair value of services rendered.

Commentary

Appointees of the judge include officials such as referees, commissioners, special
masters, receivers guardians, appraisers and personnel such as clerks secretaries,
bailiffs and all other court employees and appointees. Consent by the parties to
an appointment or an award of compensation does not relieve the judge of the
obligation prescribed by this subsection. (emphasis added)

The restrictions in Canons 2B and 3B(4) are necessary to further the broad mandates of Canons 2
and 3. Canon 2 mandates that "A Judge Should Avoid Impropriety and the Appearance of
Impropriety in all His [Her] Activities." Canon 3 provides that "A Judge Should Perform the
Duties of His [Her] Office Impartially and Diligently." It has been noted that failure of even a few
judges to comply with the Canon 3B(4) standard can lower the public's esteem for the entire
judicial system. See E. Thode, Reporter's Notes to Code of Judicial Conduct, 60 (1973).

This Board has only once considered in an advisory opinion the issue of nepotism. In Opinion 89-
001 the Board advised that it is not improper for a judge to appoint the spouse of another court
employee to a court position provided the appointment is based on qualifications. Ohio SupCt Bd
of Comm’rs on Grievances and Discipline, Op. 89-001 (1989). That opinion is not analogous here
because the appointee was not a relative of the judge.

Nepotism is not defined within the Code of Judicial Conduct. However, it is commonly defined as
“[b]estowal of patronage by public officers in appointing others to positions by reason of blood or
marital relationship to appointing authority." Black's Law Dictionary 937 (5th ed. 1979). Under
this general definition, the Canon 3B(4) reference to nepotism could include the appointment of a
lawyer within the third degree of consanguinity. However, there are two possible interpretations of
Canon 3B(4). One interpretation is that so long as an appointment is based on merit, not marital or
blood relationship, there is no per se violation of Canon 3B(4) for a judge to appoint a relative. The
other, more restrictive interpretation is that in order to eliminate nepotism, a degree of relationship
test should be applied so as to prohibit the appointment of a relative within a certain degree of
relationship. The Board favors the latter interpretation as it is less subjective and provides a more
uniform and impartial standard to guide judicial appointments.

The degrees of relationship computed by the rules of civil law are as follows: parents and children
are within the first degree; grandparents, grandchildren, brothers, and sisters are within the second
degree; uncles, aunts, nephews, nieces and great-grandparents are within the third degree; first
cousins, great-uncles, great-aunts, and great-great-grandparents are within the fourth degree; great-
great uncles, great-great-aunts, children of a cousin (first cousins once removed), and the children
of a great-uncle or a great-aunt are within the fifth degree; second cousins are within the sixth
degree. See 23 Am. Jur. 2d Descent & Distribution § 55 (1983).

Other states have written advisory opinions addressing judicial appointments. These opinions
include the following: Alabama Judicial Inquiry Comm’n, Op. 86-250 (1986) (may not appoint
niece as county law librarian under Canon 3B(4) and state statute; Alabama Judicial Inquiry
Comm’n, Op. 82-138 (1982) and 80-91 (1980) (may not appoint attorney in an indigent criminal
case when the relationship is within the fourth degree of the judge or the judge's spouse because
impartiality might be questioned--Canon 3C); Alabama Judicial Inquiry Comm’n, Op. 76-13
(1976) (may not employ uncle as bailiff since uncle is related within the restricted fourth degree
under Canon 3B(4) and state statute); Florida SupCt Committee on Standards of Conduct
Governing Judges, Op. 82-13 (1982) (may not appoint a relative as a guardian ad litem, receiver, or
a master under Canon 3B(4)); Georgia Judicial Qualifications Comm’n, Op. 68 (1985) (may not
appoint spouse or other immediate family member as a personal secretary under Canon 3B (4) and
2 (A) and (B); Kansas Judicial Ethics Advisory Panel, Op. JE-11 (1984) (may not appoint
attorney/wife with whom he previously practiced law under Canons 3B (4) and 2); Kentucky
Judiciary Ethics Committee, Op. JE-26 (1981) (may not appoint close relative as master
commissioner under Canons 2 and 3B (4)), even when the relative is the only attorney eligible for
the position; Missouri Comm’n on Retirement, Removal & Discipline, Op. 38 (1980) (may not
appoint son as guardian ad litem, appraiser, referee, trustee, or attorney for an indigent under
Canons 2 and 3B (4)); South Carolina Advisory Comm. on Standards of Judicial Conduct, Op. 1-
1980 (1980) (may not employ anyone within the sixth degree to work in his/her office under Canon
2B and 3B (4)--if state statute prohibits any head of any department of government from appointing
a person within the sixth degree of relationship a less stringent standard to the judiciary would
reflect upon its integrity); State Bar of Texas Committee on Judicial Ethics, Op. 1 (1975)
(appointment of grandnephew in the fourth degree to represent indigent not nepotism under Canon
3B(4)).

This Board's view is that the third degree of relationship is an appropriate standard to be applied
under Canon 3B (4). This view is compatible with the Code's use of the third degree of relationship
as a test to determine judicial disqualification when a relative of either the judge or the judge's
spouse is a party to a proceeding or is acting as a lawyer in a proceeding. It is also consistent with
another Ohio advisory opinion. See Cleveland Bar Ass'n, Op. 110 (1974) ("[A] judge shall not, in
exercising any power of appointment, appoint (i) the judge's spouse; (ii) anyone within the third
degree of relationship, according to the civil law system; or (iii) the spouse of such relation.”).

In conclusion, it is this Board's opinion that it is improper under Canon 2B and Canon 3B(4) of
Ohio's Code of Judicial Conduct for a judge to appoint an attorney to represent indigent parties
indicted by the grand jury, when the attorney is related to the judge or the judge's spouse within the
third degree of consanguinity. The appointment could be viewed as an exercise of nepotism which
creates the appearance of impropriety under Canon 2B and the appearance of impartiality under
Canon 3B(4). Occasional exceptions to this advice might be proper under extraordinary
circumstances in sparsely populated jurisdictions with few attorneys.

Ohio Ethics Law

Also relevant to this opinion is Division (A) (1) of Section 2921.42 of the Ohio Revised Code
(Baldwin Supp. 1992) which is set forth below.

Section 2921.42 (A) No public official shall knowingly do any of the following:

(1) Authorize, or employ the authority or influence of his (her) office to secure
authorization of any public contract in which he (she), a member of his (her) family,
or any of his (her) business associates has an interest;

A judge is a "public official" subject to the prohibition of R.C. 2921.42. See Ohio Rev. Code Ann.
§2921.01(A) (Baldwin1992). Section 2921.42(A) (1) of the Ohio Revised Code prohibits the use
of judicial authority to secure a public contract in which a family member has an interest. The
restrictions within Section 2921.42 apply when a public official, a member of his or her family, or
any of his or her business associates have a prohibited interest in a public contract. Proper
application of the law to the facts presented requires the Board to construe the meaning of "public
contract," "member of his (her) family," and "interest." In doing so, the Board relies on statutory
definitions, past opinions of the Board, and opinions issued by the Ohio Ethics Commission.

An employment relationship is a public contract under Section 2921.42 (A) (1) since the services of
an employee are being purchased or acquired. See Ohio Ethics Comm’n, Op. 89-015 (1989). A
contract between a court and an attorney to provide legal services is a public contract. See Ohio
SupCt Bd of Comm’rs on Grievances and Discipline, Op. 93-2 (1993). In Opinion 93-2 the Board
noted that, "(a) court must exercise its power of appointment to acquire services in order to carry
out its duties." For example, a court is required to provide counsel when a criminal defendant is
unable to obtain counsel. See Crim. R. 44. Hence, this Board concludes that the appointment of an
attorney to represent indigent parties indicted by the grand jury, is a "public contract" under Section
2921.42 since the court is acquiring services pursuant to its duties.

The term "a member of his [the judge's] family" has been defined. The Ohio Ethics Commission
and the Board have agreed that for purposes of Section 2921.42, "the term ‘a member of his family'
includes, but is not limited to: 1) grandparents; 2) parents; 3) spouse; 4) children, whether
dependent or not; 5) grandchildren; 6) brothers and sisters; or 7) any person related by blood or
marriage and residing in the same household." Ohio Ethics Commission 80-001 (1980), Ohio
SupCt Bd of Comm’rs on Grievances and Discipline, Op. 93-2 (1993).

The term "interest" has been defined by the Ohio Ethics Commission as a definite, direct interest
which may be either pecuniary or fiduciary. See e.g., Ohio Ethics Comm, Op. 81-008 (1981), Op.
81-003 (1981), Op. 78-005 (1978). This Board concluded in Opinion 93-2 that financial
compensation for providing legal services is a pecuniary interest. See Ohio SupCt Bd of Comm’rs
on Grievances and Discipline, Op. 93-2 (1993). Under the facts presented here, the judge's family
member would receive compensation for representing the indigent party. Hence, under Section
2921.42 (A) (1) there is a prohibited interest.

In conclusion as to Ohio Ethics Law, the Board advises that it is improper under Section 2921.42 of
the Ohio Revised Code for a judge to appoint an attorney to represent indigent parties indicted by
the grand jury when the attorney is a member of the judge's family which includes, but is not
limited to: 1)grandparents; 2) parents; 3) spouse; 4) children, whether dependent or not; 5)
grandchildren; 6) brothers and sisters; or 7) any person related by blood or marriage and residing in
the same household." However, Section 2921.42 (C) provides a safe harbor from the restriction of
Section 2921.42(A) which might be applicable in extraordinary circumstances in sparsely
populated jurisdictions with few attorneys if the conditions within Section 2921.42(C) (1) through
(4) are met. The text of the safe harbor provision, Section 2921.42 (C), is set forth below.

2921.42(C) This section [2921.42] does not apply to a public contract in which a
public servant, member of his [her] family, or one of his [her] business associates
has an interest, when all of the following apply:

(1) The subject of the public contract is necessary supplies or services for the
political subdivision or governmental agency or instrumentality involved;

(2) The supplies or services are unobtainable elsewhere for the same or lower cost,
or are being furnished to the political subdivision or governmental agency or
instrumentality as part of a continuing course of dealing established prior to the
public servant's becoming associated with the political subdivision or governmental
agency or instrumentality involved;

(3) The treatment accorded the political subdivision or governmental agency or
instrumentality is either preferential to or the same as that accorded other customers
or clients in similar transactions;

(4) The entire transaction is conducted at arm's length, with full knowledge by the
political subdivision or governmental agency or instrumentality involved, of the
interest of the public servant, member of his family, or business associate, and the
public servant takes no part in the deliberations or decision of the political
subdivision or governmental agency or instrumentality with respect to the public
contract.

Summary of Conclusions under Ohio Code of Judicial Conduct andOhio Ethics Law

It is improper under Ohio’s Code of Judicial Conduct for a judge to appoint an attorney to represent
indigent parties indicted by the grand jury, when the attorney is related to the judge or the judge’s
spouse within the third degree of consanguinity. The appointment could be viewed as an exercise
of nepotism which creates the appearance of impropriety under Canon 2B and the appearance of
impartiality under Canon 3B(4). Occasional exceptions to this advice might be proper under
extraordinary circumstances in sparsely-populated jurisdictions with few attorneys.

Further, it is improper under Ohio Ethics Law, Section 2921.42 of the Ohio Revised Code, for a
judge to appoint an attorney to represent indigent parties indicted by the grand jury, when the
attorney is a member of the judge's family which includes, but is not limited to: 1) grandparents; 2)
parents; 3) spouse; 4) children, whether dependent or not; 5) grandchildren; 6) brothers and sisters;
or 7) any person related by blood or

marriage and residing in the same household." However, Section 2921.42 (C) provides a safe
harbor from the restriction of Section 2921.42 (A) which might be applicable in extraordinary
circumstances in sparsely populated jurisdictions with few attorneys if the conditions within
Section 2921.42 (C) (1) through (4) are met.

This opinion addresses the issue of appointments by a single judge and does not consider the issue
of appointments by a collective or majority vote of a multi-judge court.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding 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. Pursuant to
Section 102.08 of the Ohio Revised Code, the requester may reasonably rely on the opinion as
it applies to Ohio Ethics Law and related statutes.