Can a judge or hearing officer write a recommendation for a lawyer who appears before them to become a certified specialist?

Plain-English summary

The Board addressed whether judges and attorney hearing officers may write recommendation letters for lawyers seeking attorney-specialist certification. Since Ohio adopted Gov.Bar R. XIV in 1993, a certifying agency must find special competence based in part on recommendations from attorneys or judges familiar with the attorney's competence (Gov.Bar R. XIV Section 3(A)(2)), so agencies ask judges and hearing officers to assess lawyers who appear before them.

Drawing on Opinion 95-5, the Board acknowledged that judicial recommendations can raise concerns (appearing to act as a character witness, lending the prestige of office, or creating an appearance of impropriety) but found those concerns not insurmountable, since that opinion approved competence-based recommendations for law school, clerkship employment, and judgeship appointments. The Board concluded that a recommendation about an attorney who appears before the judge or hearing officer is not improper, because it merely expresses the official's knowledge of the applicant's competence in response to a rule-required inquiry, and does not change the official's attitude toward the attorney. It added that a judge harboring personal bias would be required to disqualify under Canon 3(E)(1)(A), and hearing officers would likewise disqualify for bias.

Currency note

The Ohio Board flags this opinion as "Withdrawn" by Opinion 2021-12 (December 10, 2021) and as a "Former CJC Opinion" interpreting the former Ohio Code of Judicial Conduct, which was superseded by the current Ohio Code of Judicial Conduct effective March 1, 2009.

This opinion issued in 1998, before those changes. Subsequent rule amendments and the Board's withdrawal may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct before relying on any specific rule mentioned here.

Common questions

Q: Could a judge recommend a lawyer who appears before them for specialist certification?

A: Yes. The opinion concluded that the recommendation was not improper merely because the applicant appears before the judge, as long as it was based on knowledge of the applicant's competence.

Q: Why was this not treated as lending the prestige of office?

A: The opinion concluded that the judge or hearing officer was simply expressing knowledge of competence in response to a rule-required inquiry under Gov.Bar R. XIV, not voluntarily acting as a character witness.

Q: What if the judge was biased against the lawyer?

A: The opinion noted that a judge harboring personal bias would have to disqualify under Canon 3(E)(1)(A), and hearing officers would likewise disqualify for bias.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct Canon 3(E)(1) (disqualification for personal bias) against Gov.Bar R. XIV Section 3(A)(2), which requires competence-based recommendations as part of the attorney-specialist certification process.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 3(E)(1)(A)
• Gov.Bar R. XIV Section 3(A)(2)

Other opinions cited:

• Ohio BPC Op. 95-5 (judicial recommendations)

See also

• Ohio BPC Op. 1995-005: Judge Writing Letters of Recommendation
• Ohio BPC Op. 1996-005: Judge Endorsing Domestic-Violence Protocols

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-98-004.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 98-4
Issued April 3, 1998
Withdrawn by Adv. Op. 2021-12
[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.]

SYLLABUS: A judge or attorney hearing officer may make a written statement of
recommendation for an applicant seeking certification as an attorney specialist when
requested to do so by a certifying agency. The fact that the applicant appears before the
judge or hearing officer does not make such statement of recommendation improper. The
recommendation is to be based on knowledge of the competence of the applicant and is
required as part of the certification process for an attorney specialist under Gov. Bar R.
XIV §3(A)(2).

OPINION: This opinion addresses whether it is ethically proper for judges and attorney
hearing officers to write recommendation letters for applicants seeking certification as
attorney specialists.

   Is it proper for a judge or attorney hearing officer to make a written
   statement of recommendation for an applicant for certification as an
   attorney specialist when requested to do so by a certifying agency?

The certification of attorneys as specialists is permitted in Ohio since the 1993 adoption
of Rule XIV of the Supreme Court Rules for the Government of the Bar of Ohio. To be
certified as a specialist, an attorney must be registered as active and receive certification
from an agency. The agency must be approved as a certifying agency. To receive
approval, the agency must meet the standards set forth in the rule as well as any other
standards adopted by the Supreme Court Commission on the Certification of Attorneys as
Specialists.

A certifying agency is required under Gov. Bar R. XIV § 3(A)(2) to determine that an
attorney possesses special competence as demonstrated by “[r]ecommendations from
attorneys or judges who are familiar with the competence of the attorney, none of whom
are related to, or engaged in legal practice with, the attorney.” As a result, judges and
attorney hearing officers are being asked by certifying agencies to provide
recommendations regarding attorneys who appear before them.

For example, an applicant for certification as an attorney specialist in Ohio Workers’
Compensation Law must have statements of references from judges, Industrial
Commission hearing officers, and attorneys. These individuals are asked to rate
applicants in the following areas: preparation; resourcefulness; knowledge of workers’
compensation law; knowledge of workers’ compensation procedures; effectiveness as an
advocate; ethical conduct; written communication skills; oral communication skills. A

choice of three possible responses is to be made: “Has special competence; Does NOT
have special competence; Unknown.” Also, a narrative response is to be made to the
questions “Do you feel this person should be certified in workers’ compensation law in
Ohio? Why or why not?”

Upon completing the recommendation the judge or hearing officer signs the following
statement.

   I certify that any information provided is from personal knowledge or
   from other reliable sources and has not been obtained from the applicant,
   his/her relatives or professional associates.       I am furnishing this
   information to the OSBA and the Workers’ Compensation Specialty
   Board with the understanding that this information will be kept
   confidential by the board and will not be released by the board of the
   OSBA without my prior written permission. I understand the applicant
   has relinquished the right of access to information contained in this form,
   and I will not provide him/her a copy of this completed reference form.

Recommendations by judges do raise ethical concerns. In Opinion 95-5, the Board
identified several concerns. A judge may be perceived as voluntarily acting as a
character witness. A judge may be perceived as lending prestige of the office to advance
the private interests of others. A judge may be creating an appearance of impropriety.
However, these ethical concerns were not considered insurmountable bars to making
recommendations. The Board advised that certain recommendations were proper. A
judge may make a recommendation for an individual applying to law school if based on
“firsthand knowledge of the capabilities and character of the applicant.” A judge may
make a recommendation for a judicial law clerk applying for employment as an attorney
if based on “personal, day to day, knowledge of the professional and intellectual
capabilities of the clerk.” A judge may make a recommendation for an individual
seeking appointment to a federal judgeship if the recommendation is based on “factual
knowledge of the ability and suitability of the individual.” See Ohio SupCt, Bd of
Comm’rs on Griev & Disc, Op. 95-5 (1995).

Herein, a judge or an attorney hearing officer is being asked to make a recommendation
regarding an attorney who appears before him or her. The fact that an applicant appears
before the judge or attorney hearing officer does not make such statement of
recommendation improper. By making a statement of recommendation regarding the
attorney, the judge or attorney hearing officer is not changing his or her view or attitude
regarding the attorney. He or she is merely expressing his or her knowledge of the
competence of the applicant in response to an inquiry required by the rules governing the
specialization process. If a judge did harbor personal bias or prejudice concerning an
attorney, that judge would be required under Canon 3(E)(1)(A) of the Code of Judicial
Conduct to disqualify himself or herself from presiding over cases involving a party
represented by that attorney. Hearing officers would also disqualify themselves for
personal bias or prejudice.

In conclusion, the Board advises that a judge or attorney hearing officer may make a
written statement of recommendation for an applicant seeking certification as an attorney
specialist when requested to do so by a certifying agency. The fact that the applicant
appears before the judge or hearing officer does not make such statement of
recommendation improper. The recommendation is to be based on knowledge of the
competence of the applicant and is required as part of the certification process for an
attorney specialist under Gov. Bar R. XIV § 3(A)(2).

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.