Does an Ohio judge have to step aside from a case when one of the lawyers is working on the judge's election campaign?

Plain-English summary

Responding to a lawyer preparing for judicial campaign season, the Board addressed when a judge must disqualify because a lawyer appearing before the judge is involved in the judge's election campaign. Applying Jud. Cond. R. 2.11 (disqualification where impartiality might reasonably be questioned) and its Comment [1], and drawing on Ohio affidavit-of-disqualification cases such as Saffold and Osowik, the Board concluded that mere campaign participation does not create a reasonable question about the judge's impartiality, so it does not by itself require disqualification.

The Board declined to set a bright-line test. Where a lawyer's campaign activities evidence a "substantial political relationship" with the judge, disqualification is warranted. Relevant factors include the length and level of the lawyer's involvement, whether the lawyer has campaign management responsibilities, the extent of fundraising activity, whether the lawyer's name appears on solicitation materials, whether the election is contested, and the type of election. The Board advised that such disqualification last at least the entire campaign fundraising period (which Jud. Cond. R. 4.4 confines to a set window), with case-by-case extension possible. This disqualification is not imputed to the lawyer's partners and associates.

On disclosure, the Board concluded a judge may disclose a substantial political relationship and seek a waiver of disqualification under Jud. Cond. R. 2.11(C), but is not required to disclose mere campaign participation. As to the lawyer, the Board found that since the 2007 Rules dropped the "appearance of impropriety" language, no rule now requires a lawyer to disclose campaign activity to opposing counsel, though the lawyer should inform the client under Prof. Cond. R. 1.4 and must not imply special influence over the judge (Prof. Cond. R. 8.4(e)). Finally, where a lawyer serves as the judge's legal advisor and a current lawyer-client relationship exists, the judge must disqualify from the lawyer's cases until both the relationship and the fundraising period end. The Board withdrew Opinion 92-9, decided under the former Codes.

In practice

The opinion holds that, under the Ohio Code of Judicial Conduct as it stood at the time, disqualification turns on whether the lawyer's campaign role rises to a "substantial political relationship" with the judge, assessed case by case using the factors the opinion lists. Per the opinion, where it does, the judge should disqualify for at least the fundraising period, the disqualification is not imputed to the lawyer's firm, and the judge may instead disclose and seek a waiver under Rule 2.11(C). The opinion also concludes that the current Rules of Professional Conduct do not require a lawyer to disclose campaign involvement to opposing counsel, though Rule 1.4 supports disclosure to the client.

Common questions

Q: Does a judge have to recuse just because a lawyer in the case supports the judge's campaign?

A: The opinion concluded no; mere campaign participation, including serving on the committee, does not by itself require disqualification under Jud. Cond. R. 2.11.

Q: When does campaign involvement require the judge to step aside?

A: The opinion concluded disqualification is warranted when the lawyer's activities show a "substantial political relationship" with the judge, judged by factors like campaign management role, fundraising, and whether the election is contested.

Q: Is the judge's disqualification imputed to other lawyers in that lawyer's firm?

A: The opinion concluded no; Jud. Cond. R. 2.11 does not impute the disqualification, so the campaign activity of the particular lawyer before the judge is what matters.

Q: Must a lawyer tell opposing counsel about working on the judge's campaign?

A: The opinion concluded the Rules do not require it, because the 2007 Rules removed the "appearance of impropriety" language; the lawyer should, however, inform the client under Prof. Cond. R. 1.4.

Q: What if the lawyer is also acting as the judge's legal advisor during the campaign?

A: The opinion concluded that where a current lawyer-client relationship exists, the judge must disqualify from the lawyer's cases until both that relationship and the fundraising period end.

Background and rules framework

The opinion interprets Ohio Jud. Cond. R. 2.11 (disqualification) and 4.4 (campaign committees and fundraising), together with Prof. Cond. R. 1.7 (personal-interest conflicts), 1.10 (imputation), 1.4 (communication), 3.5 (impartiality of the tribunal), and 8.4(e) and (f) (misconduct) (Model Rules 1.7, 1.10, 1.4, 8.4). It distinguishes judicial disqualification from lawyer disqualification and relies on Ohio affidavit-of-disqualification decisions.

Citations and references

Rules of Professional Conduct and Judicial Conduct:

• Ohio Jud. Cond. R. 2.11 (disqualification)
• Ohio Jud. Cond. R. 4.4 (campaign committees and fundraising)
• Ohio Prof. Cond. R. 1.7 (conflict of interest: current clients) (Model Rule 1.7)
• Ohio Prof. Cond. R. 1.10 (imputation of conflicts) (Model Rule 1.10)
• Ohio Prof. Cond. R. 1.4 (communication) (Model Rule 1.4)
• Ohio Prof. Cond. R. 8.4(e), (f) (misconduct) (Model Rule 8.4)

Cases:

• In re Disqualification of Saffold, 117 Ohio St.3d 1239, 2006-Ohio-7225, substantial political relationship standard
• In re Disqualification of Osowik, 117 Ohio St.3d 1237, 2006-Ohio-7224, mere campaign participation
• In re Disqualification of Badger, 47 Ohio St.3d 604, 546 N.E.2d 929 (1989), judge currently represented by a lawyer

Other opinions cited:

• ABA Formal Op. 07-449 (2007): lawyer's contributions to a judge's campaign and disqualification
• Ohio BPC Op. 92-9 (1992) (withdrawn by this opinion): campaign committee members appearing before the judge

See also

• Ohio BPC Op. 1987-023: Recusal When an Election Opponent Represents a Party
• Ohio BPC Op. 2011-003: Judge Endorsing a Candidate for Bar Association Office
• Ohio BPC Op. 1987-024: Judge Whose Spouse Is a Prosecutor: Recusal

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_14-001.pdf

Original opinion text

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

BOARD OF COMMISSIONERS ON GRIEVANCES & DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov

DAVID E. TSCHANTZ RICHARD A. DOVE
CHAIR SECRETARY
PAUL M. DE MARCO MICHELLE A. HALL
VICE- CHAIR SENIOR COUNSEL

                                     OPINION 2014-1
                                  Issued January 31, 2014

             Standard for Judicial Disqualification When Counsel Is a
               Participant in the Judge’s Current Election Campaign

SYLLABUS: The mere participation by a lawyer in a judge’s current election campaign
does not require judicial disqualification when the lawyer has a case before the judge.
When a lawyer’s campaign activities evidence a substantial political relationship with a
judge, disqualification is warranted during the campaign fundraising period. A
substantial political relationship between a lawyer and a judge does not require the
judge to disqualify himself or herself from cases involving the partners and associates of
the lawyer’s firm. A judge must disclose a substantial political relationship with a
lawyer if seeking a waiver of disqualification, but a lawyer is not required to disclose
the relationship to opposing counsel. Should a lawyer serve as a judge’s legal advisor
during an election campaign, and a lawyer-client relationship exists, the judge must
disqualify himself or herself from the lawyer’s cases until both the campaign
fundraising period and lawyer-client relationship have ended. Advisory Opinion 92-9
is withdrawn.

QUESTIONS PRESENTED:

1. When a lawyer is currently participating in a judge’s election campaign:

a. Is the judge required to disqualify himself or herself from cases in which the
lawyer represents a party?

b. Is the judge required to disclose the lawyer’s campaign participation to the
parties and their counsel in cases involving the lawyer?
Op. 2014-1 2

 c. Is the lawyer required to disclose his or her campaign participation to opposing
    counsel in cases assigned to the judge?

2. If a lawyer acts as a judge’s legal advisor during an election campaign, is the judge
   required to disqualify himself or herself from cases in which the lawyer represents
   a party?

APPLICABLE RULE: Rule 2.11 of the Ohio Code of Judicial Conduct

OPINION:

   In preparation for the upcoming judicial campaign season, a lawyer seeks the

Board’s guidance on judicial disqualification in cases involving lawyers who are
participating in the judge’s election campaign. The requester has also asked the Board
to reexamine Advisory Opinion 92-9, which addresses some aspects of his
disqualification questions under the former Code of Judicial Conduct.

Judicial Disqualification and a Lawyer’s Campaign Participation

   First, the requester asks whether a judge is required to disqualify himself or

herself in cases involving lawyer-participants in the judge’s campaign, who may also be
members of the campaign committee. Under Jud.Cond.R. 4.4(A), a judicial candidate
‚may establish a campaign committee to manage and conduct a campaign for the
candidate, subject to the provisions of [the Code of Judicial Conduct+.‛ A candidate for
public office in Ohio may only have one campaign committee. R.C. 3517.081. Judicial
campaign contributions are directed to the committee because a judicial candidate may
not personally receive campaign contributions. Jud.Cond.R. 4.4. ‚Members of the legal
profession, who often are in the best position to gauge the qualifications of candidates
for judicial office, are the primary targets of requests to serve on campaign committees
and campaign contribution solicitations.‛ In re Disqualification of Ney, 74 Ohio St.3d
1271, 1272, 657 N.E.2d 1367, 1368 (1995).

   Parties alleging that a judge is ‚interested in a proceeding pending before the

court‛ or ‚is related to or has a bias or prejudice for or against a party to a
proceeding<or a party’s counsel‛ may file an affidavit of disqualification against the
judge. See R.C. 2101.39, 2501.13, 2701.03, and 2701.031. The chief justice rules upon
affidavits of disqualification filed against common pleas and appellate court judges
while a common pleas court judge decides affidavits of disqualification filed against
municipal and county court judges. Id. See also Ohio Constitution, Article IV, Section
Op. 2014-1 3

4.05. Examination of the reported cases reveals that ‚[a]ffidavits of disqualification
involving campaign issues are decided on a case-by-case basis.‛ Ney at 1272, 657
N.E.2d at 1368. However, it has also been the long-standing rule in Ohio that a judge is
not disqualified ‚merely because a party to or lawyer in the underlying case
campaigned for or against the judge.‛ In re Disqualification of Celebrezze, 74 Ohio St.3d
1231, 1232, 657 N.E.2d 1341 (1991). Accord In re Disqualification of Osowik, 117 Ohio St.3d
1237, 2006-Ohio-7224, 884 N.E.2d 1089; In re Disqualification of Celebrezze, 94 Ohio St.3d
1231, 763 N.E.2d 600 (2001); In re Disqualification of Maloney, 91 Ohio St.3d 1204, 741
N.E.2d 133 (2000); Ney, supra. See generally Flamm, Judicial Disqualification, Section 9.5,
249 (2nd Ed. 2007). The Board adopted the prevailing approach in 1992 when it
concluded that ‚*a+ judge is not required to disqualify himself or herself when a lawyer
who is the judge’s campaign committee co-chairperson or members of the lawyer’s firm
appear before the judge.‛ Ohio Sup. Ct., Bd. of Comm’rs on Grievances and Discipline,
Op. 92-9 (April 10, 1992), at syllabus. As the late Chief Justice Moyer more recently
articulated when evaluating the allegations of a lawyer who participated in the
campaign of a judge’s political opponent: ‚We elect judges in Ohio, and we must
ordinarily assume that an attorney’s or a party’s vocal opposition to the election of a
judge will not cause that judge to harbor bias when the attorney or the party later
appears before the judge.‛ Osowik at ¶ 6, citing Flamm, supra.

   Statutory law governs affidavit of disqualification procedure, but a judge’s

ethical obligation regarding disqualification is found in the Code of Judicial Conduct
(Code). Jud.Cond.R. 2.11 states in pertinent part as follows:

           (A) A judge shall disqualify himself or herself in any
          proceeding in which the judge’s impartiality might
          reasonably be questioned, including but not limited to the
          following circumstances:

          (1) The judge has a personal bias or prejudice concerning a
          party or a party’s lawyer, or personal knowledge of facts that
          are in dispute in the proceeding.

                                      ***

Jud.Cond.R. 2.11, Comment [1], provides more specific direction on disqualification
when a judge’s campaign supporters represent parties in cases before the judge: ‚A
judge’s knowledge that a lawyer, law firm, or litigant in a proceeding contributed to the
judge’s election campaign within the limits set forth in Rules 4.4(J) and (K), or publicly
supported the judge in the campaign, does not, in and of itself, disqualify the judge.‛
Reading Comment [1] in the context of Jud.Cond.R. 2.11(A), it appears that the drafters
Op. 2014-1 4

of the Code concluded that it is not reasonable to question a judge’s impartiality based
solely upon the participation of counsel in the judge’s election campaign. Additionally,
the affidavit of disqualification cases cited herein, the Flamm treatise, and Advisory
Opinion 92-9 all support the proposition that mere campaign participation does not
require disqualification.

    Despite the general rule regarding judicial disqualification and a lawyer’s

campaign participation, we are not willing to fashion a bright-line test regarding the
judicial campaign activity of lawyers. That is, there may be situations in which a
lawyer’s campaign participation requires judicial disqualification. As recognized by
Chief Justice Moyer in an affidavit case decided about six weeks after Osowik, ‚when a
judge’s campaign is still active, any political relationship between the judge and a
lawyer who is appearing before the judge certainly deserves close scrutiny‛ but ‚*t+he
judge’s disqualification is warranted only if that political relationship is a substantial
one<for attorneys are generally encouraged to support candidates for judicial office,
and they often do so.‛ In re Disqualification of Saffold, 117 Ohio St.3d 1239, 2006-Ohio-
7225, 884 N.E.2d 1091, ¶ 5. In Saffold, the presiding judge in a criminal case had named
the elected county prosecutor as the honorary co-chairperson of one reelection
campaign fundraiser. Disqualification was denied because the prosecutor was not
playing a critical role in the campaign or running its daily operation. However, the
opinion makes clear that when a lawyer plays an active role in campaign operations or
fundraising, a reasonable person would question the judge’s ability to remain fair and
impartial. Id. at ¶ 6. Although the Supreme Court adopted the current Code post-
Saffold, the ‚reasonable person’s‛ view of impartiality employed in Saffold is the same
standard for disqualification contained in Jud.Cond.R. 2.11(A).

    Ethics authorities concur in the statements found in Saffold regarding a

substantial political relationship between a judge and a lawyer. In the chapter entitled
‚Campaign Support Other Than Money,‛ the Flamm treatise on judicial disqualification
states that ‚where a more specific reason exists for questioning whether a judge might
be partial to a party or attorney who politically supported him – as where the level of
support exceeds mere campaign participation, a judicial campaign is presently ongoing,
or there is an affiliation between the judge and campaign committee members in a joint
project lasting for a period of time – a different result [disqualification] may be
reached.‛ Flamm, supra, Section 9.5, at 250-251. Advisory opinions from other states
confirm that a lawyer’s campaign involvement, if ongoing and significant, may be
grounds for disqualification when the lawyer is practicing before the judge. See N.Y.
Jud. Adv. Commt. on Judicial Ethics, Op. 12-28 (Mar. 8, 2012) (disqualification not
warranted in case involving political advisor who ‚did not play an active, significant or
Op. 2014-1 5

pivotal role in the judge’s campaign‛); Fla. Sup. Ct., Jud. Ethics Adv. Commt., Op. 2007-
17 (Nov. 15, 2007) (each situation must be evaluated on a case-by-case basis; factors
include role in campaign, remoteness of the campaign, and nature of political
relationship); Wis. Sup. Ct., Jud. Cond. Adv. Commt., Op. 03-1 (Mar. 22, 2004)
(disqualification required for a reasonable period of time where lawyer was judge’s
campaign manager and actively involved in the campaign in a contested election); Fla.
Sup. Ct., Jud. Ethics Adv. Commt., Op. 2003-22 (Nov. 18, 2003) (disqualification must be
evaluated on a case-by-case basis after considering level of involvement and proximity
in time to the campaign); Nev. Std. Commt. Jud. Ethics, Op. JE02-001 (Mar. 14, 2002)
(whether lawyer held ‚high campaign office or position‛ is relevant to disqualification
of judge). A judge’s general political connections are also relevant in a judicial
disqualification analysis. See In re Disqualification of Corrigan, 110 Ohio St.3d 1217, 2005-
Ohio-7153, 850 N.E.2d 720 (all county judges disqualified in case involving county
commissioner who was a former political party chair and county recorder); In re
Disqualification of Celebrezze, 105 Ohio St.3d 1241, 2004-Ohio-7360, 826 N.E.2d 301 (all
county judges disqualified in case involving ‚a county officeholder [with] significant
personal and professional connections to many judges in the county‛).

   To summarize, mere participation by a lawyer in a current, active judicial

campaign does not require disqualification when the lawyer has a case before the
judge/candidate. It is publicly understood that judges are elected in Ohio and that
lawyers lend support to judges in their election campaigns. Disqualification case law,
ethics authorities, and Jud.Cond.R. 2.11, Comment [1], indicate that such support does
not create a reasonable question as to the judge’s ability to remain fair and impartial.
Particularly in a current judicial campaign, though, disqualification must be evaluated
on a case-by-case basis if the lawyer’s campaign activities evidence the ‚substantial
political relationship‛ identified in Saffold. Factors relevant to determining if a lawyer’s
campaign activity creates a substantial political relationship with the judge include the
length and level of campaign involvement, including whether the lawyer has campaign
management responsibilities, the extent of the lawyer’s fundraising activities, whether
the lawyer’s name appears on solicitation letters, emails, and the like, whether the
election is contested, and the type of election (statewide, multi-county, or local). A
lawyer’s title in a judicial campaign may be indicative of a substantial political
relationship with the judge, but is not a determining factor in a disqualification analysis.
Some campaign titles are honorary, some are bestowed pursuant to statute, and yet
others correspond to significant campaign responsibilities. Any political ties between
the lawyer and judge occurring outside the campaign relationship are also relevant.
After consideration of these factors, if a judge determines that he or she has a
substantial political relationship with a lawyer who is connected with the judge’s
Op. 2014-1 6

election campaign, there is a reasonable question concerning the judge’s ability to
remain impartial in matters involving the lawyer, and disqualification is warranted.

   A judge evaluating a political relationship with a lawyer is further advised to

consider Jud.Cond.R. 2.11(A)(1), which states that a personal bias or prejudice
concerning a lawyer is a specific example of a situation in which a judge’s impartiality
might be reasonably questioned. Even when a lawyer is a ‚mere participant‛ in a
judicial campaign, disqualification is required if the judge harbors a personal bias or
prejudice for or against the lawyer.

    a.       Length of Disqualification Period

   Again, should a judge conclude that he or she has a substantial political

relationship with a lawyer who is involved in both the judge’s election campaign and a
matter before the judge, disqualification is warranted. A follow-up question is whether
disqualification is temporary or permanent. Jud.Cond.R. 2.11 does not specify the
duration of a judge’s disqualification. The disqualification cases demonstrate that past
campaign involvement, without more, will not require disqualification and that current
campaign activity requires ‚close scrutiny.‛ See Celebrezze, Maloney, Osowik, Saffold.
These cases and the language in Jud.Cond.R. 2.11, Comment [1], weigh against the
imposition of permanent disqualification when a lawyer engages in extensive judicial
campaign activity. Courts ‚have *also+ been reluctant to hold that a judge who is
disqualified from presiding over a proceeding is forever barred from sitting in
unrelated cases involving the same parties or counsel.‛ Flamm, supra, Section 22.9, at

663. Further, unlike other political campaigns, judicial campaigns are active for a
     designated period of time. Pursuant to Jud.Cond.R. 4.4, fundraising in a judicial
     campaign cannot begin until 120 days before the primary election date, and generally
     must conclude 120 days after the general election.1 For these reasons, we believe that
     the basis for disqualification dissipates as the proximity in time from the campaign
     increases. The Board therefore advises judges to disqualify themselves from cases
     involving lawyers with whom they have a substantial political relationship due to the
     lawyer’s campaign activities for at least the entire fundraising period. Nevertheless,
     because disqualification connected to a lawyer’s campaign activity is evaluated on a
     case-by-case basis, other facts and circumstances could require disqualification to
     continue after the fundraising period ends. These facts might include a lawyer’s
     management of campaign wrap-up tasks or a lawyer’s decision to extend his or her

1There are different fundraising deadlines in campaigns involving a primary defeat or the death or withdrawal of a
candidate. See Jud.Cond.R. 4.4.
Op. 2014-1 7

campaign involvement because the judge is on the ballot in the next election cycle for a
different seat or position.

   b.     No Imputation of Disqualification

   Another follow-up question concerns the ‚imputation‛ of judicial

disqualification to lawyers in the same firm as a lawyer who has a substantial political
relationship with a judge in a current election campaign. Jud.Cond.R. 2.11 does not
impute a judge’s disqualification to other lawyers in the same firm. In fact, Jud.Cond.R.
2.11, Comment [4], states that ‚*t+he fact that a lawyer in a proceeding is affiliated with
a law firm with which a relative of the judge is affiliated does not itself disqualify the
judge. If, however, the judge’s impartiality might reasonably be questioned<or the
relative is known by the judge to have an interest in the law firm that could be
substantially affected by the proceeding<the judge’s disqualification is required.‛ The
Board believes a similar approach should be taken regarding the partners and
associates of a lawyer-participant in a judicial campaign. That is, the campaign activity
of the particular lawyer before the judge should be evaluated for disqualification
purposes, rather than imputing one lawyer’s disqualification to the other lawyers in the
firm.

    Viewing this issue from the perspective of the Rules of Professional Conduct

(Rules) does not alter the Board’s conclusion on imputation. Judicial disqualification
and lawyer disqualification are two separate and distinct concepts. See Flamm, supra,
Section 1.9, at 24. Depending upon the facts and circumstances of a particular
representation, it is possible that a lawyer may conclude that his or her judicial
campaign involvement creates a conflict of interest under Prof.Cond.R. 1.7, which states
that a conflict is present if a lawyer’s ‚own personal interests‛ materially limit ‚the
lawyer’s ability to consider, recommend, or carry out an appropriate course of action‛
for the client. Prof.Cond.R. 1.10 governs the imputation of a lawyer’s conflicts of
interest to other lawyers in the firm, but indicates that imputation will not attach when
the conflict is ‚based on a personal interest of the prohibited lawyer and does not
present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm.‛ If the lawyer determines that his or her campaign
involvement is not a conflict of interest as defined in Prof.Cond.R. 1.7, imputation under
Prof.Cond.R. 1.10 is not applicable. Should the lawyer identify a conflict, it would be
based upon the lawyer’s personal interest, and imputation of the conflict would only
result if the interest materially limits the representation by other lawyers in the firm.
This imputation analysis is only relevant to disqualification of the lawyer, not the judge.
Op. 2014-1 8

Judge’s Disclosure of a Lawyer’s Judicial Campaign Participation

   Second, the requester asks if a judge must disclose a lawyer’s involvement in the

judge’s campaign to the parties and counsel when the lawyer has a case before the
judge. Disclosure is addressed in Jud.Cond.R. 2.11(C), as is the remittal of
disqualification:

          (C) A judge subject to disqualification under this rule,
          other than for personal bias or prejudice under
          division (A)(1) of this rule, may disclose on the record
          the basis of the judge’s disqualification and may ask
          the parties and their lawyers to consider, outside the
          presence of the judge and court personnel, whether to
          waive disqualification. If, following the disclosure,
          the parties and lawyers agree, without participation
          by the judge or court personnel, that the judge should
          not be disqualified, the judge may participate in the
          proceeding. The agreement shall be incorporated into
          the record of the proceeding.

Jud.Cond.R. 2.11, Comment 5+, also speaks to disclosure: ‚a+ judge should disclose on
the record information that the judge believes the parties or their lawyers might
reasonably consider relevant to a possible motion for disqualification, even if the judge
believes there is no basis for disqualification.‛

    Under Jud.Cond.R. 2.11(C), if a judge concludes that he or she has a substantial

political relationship with a lawyer due to the lawyer’s judicial election campaign
activities, the judge may choose to disclose the relationship to the parties and their
counsel in cases involving the lawyer and request a waiver of disqualification.
Jud.Cond.R. 2.11(C) does not require disclosure if the judge disqualifies himself or
herself from a case based upon a substantial political relationship with a lawyer. When
a lawyer is a ‚mere participant‛ in a judicial campaign, and after consideration of the
factors set forth in this opinion, a judge concludes that he or she does not maintain a
substantial political relationship with the lawyer, the Board’s view is that the judge is
not required to disclose the lawyer’s campaign participation. Ohio affidavit cases have
consistently held that mere campaign participation does not mandate judicial
disqualification. Jud.Cond.R. 2.11, Comment [1], states that a lawyer’s public support of
a judge’s campaign does not disqualify the judge and ethics authorities support this
approach. Accordingly, the mere campaign participation of a lawyer does not
Op. 2014-1 9

constitute a sufficient reasonable and objective basis for disqualification and the judge is
not required to disclose the lawyer’s participation. The judge may, however, disclose
the information if he or she so chooses. If the judge concludes he or she has a personal
bias or prejudice for or against the lawyer, waiver of disqualification is not permitted
under Jud.Cond.R. 2.11(C).

Lawyer’s Disclosure of His or Her Judicial Campaign Participation

    Next, the requester inquires as to a lawyer’s obligation to disclose judicial

campaign activity to opposing counsel in cases before the judge associated with the
campaign. In Advisory Opinion 92-9, the Board stated that because ‚lawyers must
avoid the appearance of impropriety, it is suggested that during the campaign there be
full disclosure to, and consent by, opposing counsel.‛ Opinion 92-9 at syllabus. The
Board’s view at that time was based entirely on the general pronouncement in former
Canon 9 of the Code of Professional Responsibility that ‚a lawyer should avoid even the
appearance of professional impropriety.‛ When the Supreme Court adopted the Rules
in 2007, it eliminated the ‚appearance of impropriety‛ language. Upon consultation of
the Rules, we could not locate a provision that explicitly requires a lawyer to disclose
his or her judicial campaign activity to opposing counsel when the campaign involves
the judge presiding over the matter. Consequently, we are unable to find current
support for the Board’s previous advice on disclosure to opposing counsel. While a
lawyer is permitted to disclose his or her connection to the presiding judge’s campaign,
the Rules do not mandate such disclosure.

    This general advice to lawyers is tempered by the rules on impartiality and

decorum of the tribunal, professional misconduct, and client communication.
Prof.Cond.R. 3.5(a) prohibits lawyers from ‚seek*ing+ to influence a judicial officer,
juror, prospective juror, or other official by means prohibited by law.‛ The law
governing improper influence upon a tribunal includes the Code of Judicial Conduct.
See Prof.Cond.R. 3.5, Comment [1]. Under Prof.Cond.R. 8.4(e), it is professional
misconduct for a lawyer to ‚state or imply an ability to influence improperly a
government agency or official.‛ Thus, should a lawyer choose to disclose judicial
campaign activity to opposing counsel, the lawyer must not use the information to
convey an impression that the lawyer is in particular good favor with the judge. It is
also professional misconduct for a lawyer to ‚knowingly assist a judge or judicial officer
in conduct that is a violation of the [Rules], the applicable rules of judicial conduct, or
other law.‛ Prof.Cond.R. 8.4(f). If a lawyer has a substantial political relationship with
a judge who is presiding over a case in which the lawyer is counsel, and the judge has
not disqualified himself or herself or disclosed the relationship as part of the
Op. 2014-1 10

Jud.Cond.R. 2.11(C) remittal process, the judge may be in violation of the Code. ‚A+
lawyer’s continued participation in a case presided over by a judge who is acting in
violation of Judicial Conduct Rule 2.11 constitutes ‘assistance’ of that misconduct in
violation of Rule 8.4(f).‛ ABA Commt. on Ethics and Prof’l Responsibility, Formal Op.
07-449 (Aug. 9, 2007), at 4. In this situation, the lawyer should bring the matter to the
attention of the judge. This notification would not be an ex parte communication under
Jud.Cond.R. 2.9. Id. at 4-5. Finally, Prof.Cond.R. 1.4 imposes a broad duty of client
communication upon a lawyer, including ‚reasonable consultation+ with the client
about the means by which the client’s objectives are to be accomplished‛ and
‚*explanation of+ a matter to the extent reasonably necessary to make informed
decisions regarding the representation.‛ Prof.Cond.R. 1.4(a)(2) and (b). In accordance
with the duty of client communication, a lawyer engaged in a substantial political
relationship with a judge presiding over a client’s matter should inform the client of the
relationship.

Judicial Disqualification when Lawyer is Judge’s Legal Advisor During Campaign

   The requester’s final question is whether judicial disqualification is required

when a lawyer acting as a judge’s legal advisor in an election campaign has a case
before the judge. Applying Jud.Cond.R. 2.11, if the judge has a personal bias or
prejudice concerning the lawyer, disqualification is required and cannot be waived
pursuant to Jud.Cond.R. 2.11(C). Otherwise, if a lawyer-client relationship exists
between the judge and lawyer, the question is whether the relationship would cause a
reasonable person to question the judge’s impartiality. Jud.Cond.R. 2.11(A). Since 1989,
Ohio affidavit of disqualification cases have held that a reasonable question as to
impartiality exists when a judge’s lawyer represents a party before the judge on an
unrelated matter. In re Disqualification of Badger, 47 Ohio St.3d 604, 546 N.E.2d 929
(1989), involved a judge who had been represented in an official-capacity matter by
counsel for one of the defendants in a case before the judge. The chief justice
disqualified the judge, stating that ‚when a private lawyer is currently representing a
judge, even in a matter involving the judge’s official position or conduct, the judge
should not sit in a case in which a litigant is represented by the lawyer.‛ Id., quoting
ABA Commt. on Ethics and Prof’l Responsibility, Informal Op. No. 1477 (1981).
Subsequent affidavit cases demonstrate that disqualification is only required when the
lawyer-client relationship between the judge and lawyer exists contemporaneously with
the unrelated case pending before the judge. In re Disqualification of Morley, 74 Ohio
St.3d 1265, 657 N.E.2d 1363 (1994); In re Disqualification of DeWeese, 74 Ohio St.3d 1256,
657 N.E.2d 1357 (1994); In re Disqualification of Morgan, 74 Ohio St.3d 1223, 657 N.E.2d
1335 (1990). Reading these cases in light of the ‚reasonable question as to impartiality‛
Op. 2014-1 11

standard in Jud.Cond.R. 2.11(A), we conclude that a current lawyer-client relationship
between a judge and a lawyer representing a party in an unrelated case before the judge
requires the judge’s disqualification. Similarly, if a lawyer serves as a judge’s legal
advisor during a political campaign, and there is a lawyer-client relationship between
the judge and lawyer, the judge must disqualify himself or herself from any proceeding
involving the lawyer. Disqualification should continue for the duration of both the
lawyer-client relationship and the election fundraising period. Whether the
relationship exists within the campaign context or not, the judge may seek a waiver of
disqualification by following the remittal process in Jud.Cond.R. 2.11(C). Accord ABA
Formal Op. 07-449 at 3-4.

Withdrawal of Advisory Opinion 92-9

   Advisory Opinion 92-9 examines judicial disqualification as it relates to a

lawyer’s judicial election campaign activity under the former Code of Judicial Conduct,
which the Supreme Court repealed effective March 1, 2009, and the former Code of
Professional Responsibility, which the Court repealed effective February 1, 2007. In the
Opinion, the Board essentially establishes a general rule that disqualification is not
required when a judge’s election campaign committee members appear before the
judge. The Board also found that to avoid an appearance of impropriety, lawyers must
disclose their judicial campaign activity to opposing counsel in cases before the
judge/candidate. Because the Board now concludes that under the current Code and
affidavit of disqualification cases decided after Opinion 92-9, a lawyer’s campaign
involvement may require disqualification if there is a substantial political relationship
between the judge and lawyer, and that the current Rules do not mandate disclosure of
campaign activities to opposing counsel, we withdraw Opinion 92-9 in its entirety.

CONCLUSION:

   Jud.Cond.R. 2.11 requires disqualification ‚in any proceeding in which the

judge’s impartiality might reasonably be questioned.‛ The political reality in Ohio is
that judges are publicly-elected officials. Lawyers are charged with advancing the
administration of justice, which includes participation in the evaluation of candidates
for judicial office. This participation often takes the form of supporting a judge during
an election campaign. Given this framework, the Board is of the opinion that a lawyer’s
mere participation in a current judicial election campaign does not create a reasonable
question as to the judge’s impartiality when the lawyer is before the judge.
Accordingly, judicial disqualification is not required unless the judge has a personal
bias or prejudice concerning the lawyer. However, if a lawyer’s current campaign
Op. 2014-1 12

activities evidence a substantial political relationship with a judge, a reasonable person
would question the judge’s impartiality in cases involving the lawyer. To determine
whether a judge has a substantial political relationship with a lawyer, the judge should
consider factors such as the length and level of the lawyer’s campaign involvement,
whether the lawyer has campaign management responsibilities, the extent of the
lawyer’s fundraising activities, whether the lawyer’s name appears on solicitation
letters, emails, and the like, whether the election is contested, and the type of election
(statewide, multi-county, or local). If a judge concludes that he or she has a substantial
political relationship with a lawyer involved in a case before the judge, disqualification
is warranted for the duration of the current campaign fundraising period, but is not
‚imputed‛ to other lawyers in the same firm.

   If a judge identifies a substantial political relationship with a lawyer, and does

not harbor a personal bias or prejudice concerning the lawyer, Jud.Cond.R. 2.11(C)
allows the judge to seek a waiver of disqualification after disclosure of the relationship
on the record. Disclosure of the relationship is not mandated if the judge disqualifies
himself or herself from cases involving the lawyer.

    The Rules of Professional Conduct do not require a lawyer to disclose a

substantial political relationship with a judge to opposing counsel, but the lawyer
should notify the client of the relationship in accordance with Prof.Cond.R. 1.4. If a
lawyer serves as a judge’s legal advisor during an election campaign, and a lawyer-
client relationship exists, the judge must disqualify himself or herself from the lawyer’s
cases until both the campaign fundraising period and lawyer-client relationship have
ended.

  The Board withdraws Advisory Opinion 92-9, which was issued under the

former Code of Judicial Conduct and former Code of Professional Responsibility.

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 Ohio
Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.