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Board of Conduct says judges have duty to report colleagues' ethics rules violations

Special to the Legal News

Published: March 17, 2017

Judges who have knowledge of ethics violations are required to report them to disciplinary authorities according to a new advisory opinion from the Ohio Board of Professional Conduct.

Opinion 2017-02 withdraws Opinion 89-32 and addresses the duty of judges to report misconduct.

"A judge who has knowledge that another judge has committed a violation of the Code of Judicial Conduct that raises a question regarding the judge's honesty, trustworthiness or fitness as a judge in other respects is required to report it to the appropriate disciplinary authority," the board's opinion states. "Likewise, a judge who has knowledge of a lawyer's violation of the Rules of Professional Conduct has an ethical duty to report it to the disciplinary counsel or a local certified grievance committee."

The opinion clarifies that a report of misconduct by a judge should be made within a "reasonable time" after the judge becomes aware of the ethics violation.

"If a judge does not have actual knowledge, but receives information indicating a substantial likelihood that another judge or lawyer has committed reportable misconduct, then the judge should take appropriate action," according to the board.

"Appropriate action" may include communicating directly with the judge or lawyer involved, communicating with a supervisor, partner, or colleague, or reporting the suspected violation to the appropriate disciplinary authority.

The board additionally held that a judge who reports a lawyer's misconduct to the proper disciplinary authority is not presumptively disqualified from presiding over cases in which that lawyer appears.

The board, which addresses prospective or hypothetical questions posed to it by the legal community, issued the opinion in response to two questions: "What is a judge's duty under the Code of Judicial Conduct to report another judge's or lawyer's misconduct?" and "If a judge reports a lawyer's violation of the Code of Professional Responsibility, is the judge disqualified from hearing any cases involving that lawyer?"

The board held that a judge is obligated to take action in order to address misconduct.

"A judge has a responsibility to participate in efforts to ensure public respect for the judicial system and, therefore, should not ignore or deny known misconduct among judicial colleagues or lawyers," the opinion states. "Since a judge is also a lawyer, a judge must self-report a violation of the Rules of Professional Conduct that satisfies this standard."

The opinion makes clear that judges are not obligated to report misconduct by those who are not judges or lawyers, "however, the board advises that a judge should expose obvious and egregious illegal activity where the failure to do so could undermine confidence in the integrity of the judiciary."

In reports involving lawyers, the board held that the reporting judge is not automatically required to recuse him or herself from the case, even if the judge is the chief complaining witness.

But it did note that a judge should recuse himself or herself if "a reasonable and objective observer would harbor serious doubts about the judge's impartiality."

Advisory opinions from the Board of Professional Conduct are nonbinding.

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