Application

As amended through October 29, 2024

Application

The Application section establishes how and when the various rules apply to a judge or judicial candidate.

I. Applicability of this Code

(A) This code applies to all fulltime judges. The Application section identifies provisions that do not apply to distinct categories of judges. Canon 4 applies to judicial candidates.

(B) A judge, within the meaning of this code, is a lawyer who is authorized to perform judicial functions within a court, including an officer such as a magistrate, court commissioner, or special master.

Comment

[1] The rules in this code have been formulated to address the ethical obligations of any person who serves a judicial function and are premised upon the supposition that a uniform system of ethical principles should apply to all those authorized to perform judicial functions.

[2] The determination of which category and, accordingly, which specific rules apply to an individual judicial officer, depends upon the facts of the particular judicial service.

[3] [RESERVED]

II. Retired Judge Subject to Recall

This code applies to a retired judge subject to recall for service, who by law is not permitted to practice law, except that a retired judge is not required to comply with either of the following:

(A) Rule 3.9, except while serving as a judge;

(B) Rule 3.8, at any time.

Comment

[1] For the purposes of this section, as long as a retired judge is subject to being recalled for service, the judge is considered to be performing judicial functions.

III. Parttime Judge

(A) This code applies to a judge who serves repeatedly on a parttime basis by election or appointment, except that a parttime judge is not required to comply with Rules 3.4, 3.8, 3.9, 3.10, and 3.11(A) and (B), at any time.

(B) A parttime judge shall not practice law in the court on which the judge serves or in any court subject to the appellate jurisdiction of the court on which the judge serves, and shall not act as a lawyer in a proceeding in which the judge has served as a judge or in any other related proceeding.

Comment

[1] When a person who has been a parttime judge is no longer a parttime judge, including a retired judge no longer subject to recall, that person may act as a lawyer in a proceeding in which he or she has served as a judge or in any other related proceeding only with the informed consent of all parties and pursuant to Rule 1.12 of the Ohio Rules of Professional Conduct.

[2] Division (B) prohibits a parttime judge from appearing in his or her own court and from appearing in another court from which matters may be appealed to the parttime judge's court. For example, a parttime judge could not practice in a mayor's court within the territorial jurisdiction of the court on which the parttime judge serves.

IV. [RESERVED]

V. Acting Judge

This code applies to an acting judge who serves or expects to serve once or only sporadically on a parttime basis by appointment made pursuant to R.C. 1901.10, 1901.12, or 1907.14, except that an acting judge is not required to comply with any of the following:

(A) Rules 1.2, 2.4, 2.10, 3.2, 3.12, or 3.13, except while serving as an acting judge;

(B) Rules 3.4, 3.7, 3.8, 3.9, 3.10, 3.11, 3.15, 4.1, 4.2, 4.3, 4.4, 4.5, and 4.6, at any time.

Comment

[1] An acting judge violates Rule 1.3 by engaging in the solicitation or receipt of campaign contributions on behalf of the judge who appointed the acting judge while serving as an acting judge.

[2] Although division (B) exempts an acting judge from compliance with Rules 4.1 to 4.6, this exemption does not apply to an acting judge who is a judicial candidate as defined in Rule 4.6. See Rule 8.2(b) of the Ohio Rules of Professional Conduct.

VI. Time for Compliance

A person to whom this code becomes applicable shall comply immediately with its provisions, except as otherwise provided in Rules 3.8 and 3.11.

Comment

[1] [RESERVED]

Comparison to Ohio Code of Judicial Conduct

The Application section is analogous to the Compliance section of the Ohio Code.

Part I corresponds to division (A) of the Compliance section.

Part II (retired judges) corresponds to division (D) of the Compliance section. Part II is more restrictive than the Compliance section of the Ohio Code in that it does not include exemptions from compliance by a retired judge with prohibitions related to outside business activities [c.f., Ohio Canon 2(C)(3) and Rule 3.11(B) ] and accepting appointments to governmental committees and commissions [c.f., Ohio Canon 4(C)(2) and Rule 3.4 ].

The exemptions contained in Part III (parttime judges) are analogous to those contained in division (B) of the Compliance section, except that Part III exempts a parttime judge from compliance with Rule 3.9 (Service as an Arbitrator or Mediator).

Part V (acting judges) corresponds to, but is structured differently from, division (C) of the Compliance section. The Ohio Code lists certain provisions from which an acting judge is exempt while serving in that capacity. The new Compliance section adds several exemptions in division (A), but specifies that the acting judge must adhere to the exempted provisions while serving in that capacity. The exemptions listed in division (B) apply at anytime and, except for the addition of Rule 3.7, are substantively identical to those contained in the Ohio Code.

Part V, Comment [1] is intended to clarify that an acting judge, consistent with Rule 1.3, may not engage in political activity, including fundraising on behalf of the appointing judge, while serving as an acting judge. This comment has no antecedent in the Ohio Code. Comment [2] is a restatement of Ohio law as reflected in Rule 4.6(E) [former Ohio Canon 7(A)(1) ] and Rule 8.2(b) of the Ohio Rules of Professional Conduct.

Part VI corresponds to the Effective Date of Compliance section of the Ohio Code.

Comparison to ABA Model Code of Judicial Conduct

Part I of the Application section is modified from the Model Code to conform to Ohio law. As executive branch employees, administrative hearing officers are excluded from application of the Code as is the case in the existing Ohio Code. Comment [3] is stricken because it suggests that a court, through the adoption of local rules, can nullify provisions of the Code of Judicial Conduct. Such a suggestion is contrary to the plenary authority of the Supreme Court to regulate the conduct of the judiciary and the concept of prescribing a uniform set of standards applicable to all judicial officers.

Part II contains minor, stylistic changes.

Part III is modified to reflect the nature of parttime judges in Ohio as elected public officials. Comment [2] is added to clarify the limitations on the practice of law by parttime judges.

Part IV is stricken as inapplicable in Ohio.

Part V is modified to reflect the designation of "acting judge" used in Ohio law and other provisions relative to the appointment of acting judges. Two comments are added to Part V to expand on limits on political activity by acting judges and application of Canon 4 to an acting judge who is a candidate for judicial office.

Part VI is modified to reflect Ohio law and the provisions of Rules 3.8 and 3.11.