Depth of Judicial Campaign Activities of Lawyer with Case Before Judge Determines Disqualification
A judge is required to recuse from a case handled by a lawyer who participates in the judge’s campaign if there’s a “substantial political relationship” with the lawyer during the campaign fundraising period, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.
Opinion 2014-1 covers Rule 2.11 of the Ohio Code of Judicial Conduct. The lawyer requesting the advisory opinion also asked the board to re-examine a 1992 Advisory Opinion, which addressed some aspects of disqualification questions under the former code. Based on its updated view, the board withdrew the advice given in Advisory Opinion 92-9.
“Jud.Cond.R. 2.11 requires disqualification ‘in any proceeding in which the judge’s impartiality might reasonably be questioned,’” according to the opinion. “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 opinion continues, “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.”
“However, if a lawyer’s current campaign activities evidence a substantial political relationship with a judge, a reasonable person would question the judge’s impartiality in cases involving the lawyer.”
Rather than creating a “bright-line test” regarding the judicial campaign activity of lawyers, the opinion lays out the factors for a judge to consider – on a case-by-case basis – to determine whether a substantial political relationship exists.
“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.”
The opinion goes on to detail criteria for determining when a lawyer’s participation in a campaign is substantial.
“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.” The board further stated that “[a]ny political ties between the laywer and judge occurring outside the campaign are also relevant.”
In offering this revised guidance to candidates and lawyers involved in campaigns, the board opinion specifically rescinded an earlier opinion from 1992 that had been based on the former Code of Judicial Conduct that was repealed in 2007.
“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, … we withdraw Opinion 92-9 in its entirety.”
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.
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