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Ohio Legal Ethics Narrative
VIII Maintaining the integrity of the profession
Ohio Rule 8.2(a) differs from the Model Rule in the following respects:
After "integrity of a", Ohio inserts "judicial officer, or candidate for election or appointment to judicial office." for the Model Rule language "judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or public office."
Ohio Rule 8.2(b) differs from the Model Rule as follows:
the words "not violate" are substituted for "comply with" after "shall"; "applicable" is deleted before "provisions"; "Ohio" is added before "Code"; and "applicable to judicial candidates." is added after "Conduct".
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.2(a): DR 8-102.
The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 8.2(b): DR 2-102(A)(1) [sic DR 1-102(A)(1)].
- Primary Ohio References: Ohio Rule 8.2(a)
- Background References: ABA Model Rule 8.2(a)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 8.27-8.29
- Commentary: ABA/BNA § 101:601, ALI-LGL § 114, Wolfram § 11.3.2
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, The Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 8.27-8.29 (1996).
Under Ohio Rule 8.2(a), a lawyer shall not make a statement "that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judicial officer, or candidate for election or appointment to judicial office." Other offensive comments directed at a judicial officer or a candidate for judicial office may be subject to sanction under Ohio Rule 8.4(d) as "prejudicial to the administration of justice." See section 8.4:500.
The similar prohibitions in MR 8.2(a) are broader in scope -- in addition to judges and judicial candidates, the Model Rule precludes such statements by a lawyer about public legal officers and candidates for legal office (e.g., prosecutor, attorney general, public defender). According to the Task Force in its ABA Model Rules Comparison to Rule 8.2, these officers were not included because they were not included in former DR 8-102 and because "disciplinary authorities should not be responsible for investigating statements made during campaigns for county attorney, attorney general, or any other public legal position." The Ohio Rule also appears narrower than the former disciplinary rule on point, which prohibited a lawyer from making false statements against "a judge or other adjudicatory officer." OH DR 8-102(B). The Ohio Rule focuses upon "judicial officers" and candidates for such offices. It would appear that agency personnel handling adjudicative administrative proceedings were covered by the former language, but may not be covered by Rule 8.2(a).
The question of the scope of Rule 8.2(a) is made murkier by the decision in Disciplinary Counsel v. Watterson, 114 Ohio St.3d 159, 2007 Ohio 3615, 870 N.E.2d 1153. In Watterson, the Court held that the respondent violated DR 8-102(B) (as well as Gov Bar R IV 2 (duty of lawyer to maintain respectful attitude toward “courts”)) by knowingly making false accusations against the Stark County Bar Association Grievance Committee, which had been investigating alleged violations by respondent until it recused itself. Although it did not make any explicit analysis of the issue, the Court's holding clearly reads "other adjudicatory officer" as including members of a grievance committee. Can the words "judicial officer" in Rule 8.2(a) be read as broadly? It would seem a bit of a stretch, but the Task Force in its Ohio Rule Comparison stated that 8.2(a) is "comparable to DR 8-102 and does not depart substantively from that rule."
Under former OH DR 8-102, which prohibited a lawyer from "knowingly" making false accusations about judges and other adjudicatory officers, it was decided that "knowingly" was intended to incorporate an objective standard, rather than the subjective actual-malice standard used to test allegedly defamatory statements made against public figures. See the discussion of the Gardner case, this section infra. See also ABA, Annotated Model Rules of Professional Conduct 565-67 (6th ed. 2007) (commentary) (setting forth the developing national case law in favor of the objective standard). Inasmuch as Ohio Rule 8.2(a) "is comparable to DR 8-102 and does not depart substantively from that rule" (Ohio Code Comparison to Rule 8.2), it can be assumed that "knows" under Rule 8.2(a) will be similarly interpreted.
The Rule is narrower than the prior provision with respect to the types of false statements that might trigger discipline. Under the Code, a lawyer could not knowingly make "false statements of fact concerning the qualifications of a candidate for judicial office," nor "false accusations" against a judge or adjudicatory officer. OH DR 8-102. Under Ohio Rule 8.2(b), in contrast, the focus is only on false statements concerning the "qualifications or integrity" of judicial officers and candidates for judicial office.
Comment  emphasizes the importance of assessments by lawyers in evaluating judges -- such assessments are relied on to ascertain professional and personal fitness of those being considered for judicial office; thus, a lawyer's expression of "honest and candid opinions . . . contributes to improving the administration of justice. Conversely, false statements by a lawyer can unfairly undermine public confidence in the administration of justice." Ohio Rule 8.2 cmt. .
Comment  encourages lawyers "to continue traditional efforts to defend judges and courts unjustly criticized." Rule 8.2 cmt. .
By far the most significant decision dealing with false accusations made against a judicial officer under former OH DR 8-102(B) was Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003 Ohio 4048, 793 N.E.2d 425. In Gardner, the respondent in a motion for reconsideration made accusations of dishonesty and bias about a panel of the Eighth District Court of Appeals after a decision adverse to his client was handed down by the panel. (Among other comments, respondent asserted that the panel "did not give 'a damn about how wrong, disingenuous, and biased its opinion is.'" Id. at para. 4.) As a result, a disciplinary action was commenced against him, and the Supreme Court imposed a six-month suspension from the practice of law. In so doing, the Court held that respondent's tirade directed to the appellate panel was not protected by the First Amendment of the U.S. Constitution or the free-speech clause of the Ohio Constitution, and that an objective standard, rather than the subjective actual-malice standard, applied in determining whether respondent's accusations of judicial impropriety were made "knowingly" in violation of OH DR 8-102(B).
With respect to the federal constitution, the Court concluded that
the First Amendment does not insulate an attorney from professional discipline even for expressing an opinion, during court proceedings, that a judge is corrupt when the attorney knows that the opinion has no factual basis or is reckless in that regard.
Id. at para. 16. ABA, Annotated Model Rules of Professional Conduct 564-65 (6th ed. 2007) (commentary), sets forth the national precedent (including Gardner) and commentary on the constitutionality of such limits.
Pursuant to the free-speech clause of the state constitution (Art I, § 11), "[w]hen the statement in question cannot reasonably be interpreted by the ordinary reader as stating actual facts about an individual, the statement is protected as the free expression of opinion under Section 11." Id. at ¶ 19. This means that "certain false statements of opinion are protected," id., and thus the court must determine whether the statement is one of fact, sanctionable under former OH DR 8-102(B), or protected opinion. The test is an objective one, based on the totality of the circumstances. Finding that charges of criminal conduct are sufficiently specific to constitute fact, the Court concluded that accusations that an appellate court affirmed a conviction "out of prosecutorial bias and corruption is no less specific. Such allegation are charges of criminal or unethical activity and, therefore, constitute classic examples of statements having a well-defined meaning." Id. at ¶ 21. Finally, in support of its conclusion on the state constitutional issue, the Supreme Court noted that a "courtroom is not a forum for personal or political grandstanding" and that, "in the context of his motion and that appeal, respondent's statements are reasonably understood to be factual assertions of the appellate court's corruption and prosecutorial bias." Id. at ¶ 22.
The third issue may be the most interesting of the three. Even though OH DR 8-102(B) provided that a lawyer shall not "knowingly" make false accusations against a judge or court, the Gardner Court held that an objective test, not the subjective actual-malice defamation test (knowing falsehood or reckless disregard of its falsity) of New York Times v. Sullivan, 376 U.S. 254 (1964), and Garrison v. Louisiana, 379 U.S. 64 (1964) (New York Times test applied in libel action against district attorney, premised on his statements about Louisiana judges), is applicable. Finding support in the commentary to MR 8.2(a) (Annotated Model Rules of Professional Conduct 566 (4th ed. 1999) [in Sixth Edition (2007) see p. 566]) and "the majority of courts that have addressed this issue," id. at ¶ 26, the Ohio Supreme Court
similarly conclude[d] that the state's compelling interest in preserving public confidence in the judiciary supports applying a standard in disciplinary proceedings different from that applicable in defamation cases. Under the objective standard, an attorney may still freely exercise free speech rights and make statements supported by a reasonable factual basis, even if the attorney turns out to be mistaken. . . . Accordingly we hold that an attorney may be sanctioned for making accusations of judicial impropriety that a reasonable attorney would believe are false.
Id. at ¶ 31 (citation omitted). Contra 2 Restatement (Third) of the Law Governing Lawyers § 114 cmt. b, at 198 (2000) (New York Times actual-malice standard should be applied in lawyer discipline cases).
Finally, in rejecting the recommended sanction of both the panel (public reprimand) and the board (six-month stayed suspension), the Court imposed a six-month suspension without stay: "Unfounded attacks against the integrity of the judiciary require an actual suspension from the practice of law." Id. at ¶ 36.
Other cases under former OH DR 8-102(B) include Office of Disciplinary Counsel v. West, 85 Ohio St.3d 5, 706 N.E.2d 760 (1999), and Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 677 N.E.2d 349 (1997). In West, the respondent was suspended for eighteen months, with twelve months stayed (respondent's clinical depression was a mitigating circumstance), for knowingly and falsely accusing a federal bankruptcy judge of criminal misconduct. At a hearing in federal district court, respondent stated that the judge had a financial interest in the case in which respondent was representing the bankrupt. According to respondent, the judge was receiving kickbacks from the bankruptcy trustee, whose fees were increased by the scheduling of numerous unnecessary hearings. Respondent subsequently admitted at the disciplinary hearing that his accusations were unfounded. In Batt, at a hearing before the Ohio Hazardous Waste Facility Board, respondent "publicly called the presiding judge a 'marginal incompetent,' and implied that panel members bought their appointments, were biased, and were responding to political measures." 78 Ohio St.3d at 190, 677 N.E.2d at 351. The panel found numerous violations of the OHCPR, including OH DR 8-102(B), resulting from this conduct. Without focusing on the 8-102(B) violation in particular and making no mention of the rule's "knowingly" requirement (the Court merely noted that respondent's "bullying tactics toward . . . the board . . . have no place in our jurisprudence," id. at 192, 677 N.E.2d at 352), the Court adopted the Disciplinary Board's recommendation of permanent disbarment. See also Akron Bar Ass'n v. Holder, 105 Ohio St.3d 443, 2005 Ohio 2695, 828 N.E.2d 443, at ¶ 36 (stating that OH DR 8-102(B) was violated by the respondent's "falsely accusing the bankruptcy judge of not acting impartially").
Akron Bar Ass'n v. Spittal, 51 Ohio St.3d 121, 554 N.E.2d 1338 (1990), involved an attorney who was disbarred from the practice of law for violating former OH DR 8-102(B) by "routinely, and without justification" referring to the decisions of state and federal judges as the product of "dishonesty, partiality, ignorance, and incompetence" and by accusing the judges of lying. Id. at 122, 554 N.E.2d at 1339 (these actions were also found to violate former OH DR 1-102(A)(5) as conduct prejudicial to the administration of justice). In Columbus Bar Ass'n v. Hartwell, 35 Ohio St.3d 258, 520 N.E.2d 226 (1988), the Supreme Court ordered a one-year suspension for a lawyer who explained a lost case to a client by saying that the judge had been "paid off" by opposing counsel, where that was untrue and the lawyer did not in fact believe it had occurred. See also Office of Disciplinary Counsel v. O'Leary, 67 Ohio St.3d 425, 619 N.E.2d 410 (1993) (filing more than twenty unfounded affidavits of prejudice against judges in one proceeding violated OH DR 8-102(B)); Cincinnati Bar Ass'n v. Bednarczuk, 22 Ohio St.2d 99, 258 N.E.2d 116 (1970) (pre-Code case; respondent indefinitely suspended for filing federal suit against, inter alia, state judge who had tried his client's case, accusing the state judge of conspiracy and fraud, and, after the federal suit was dismissed, publishing a book that repeated the allegations made in the federal complaint).
In Office of Disciplinary Counsel v. Baumgartner, 100 Ohio St.3d 41, 2003 Ohio 4756, 796 N.E.2d 495, the respondent was charged with violating, among other rules, former OH DR 8-102(B), based on her "vendetta" against numerous public officials, including judges, pursuant to which she made unfounded charges of corruption, conspiracy, and obstruction of justice. Because of her "seemingly inexhaustible campaign to retaliate against anyone and everyone who defied her," including "public officials whose integrity she attacked if they resisted her demands," id. at ¶ 27, respondent was permanently disbarred. In rejecting her argument that she was being punished for "whistle blowing" and reporting and combating corruption, the Court had this to say:
We disagree. Respondent has made innumerable false accusations of wrongdoing that a reasonable attorney in her situation would know were false. There is no protection for such statements and attorneys are subject to discipline for them. [citing the Gardner case, discussed above]. Moreover, when an attorney repeatedly harms her clients' interests, manipulates the legal system to harass and intimidate, and publicly accuses dozens of people of criminal wrongdoing, our constitutional duty to regulate the legal profession for the public's protection compels us to impose the most extreme sanction: disbarment.
Id. at ¶ 46 (bracketed material added).
In contrast to the foregoing cases, if a lawyer has proper grounds for serious complaint that a judge has violated the Judicial Code, the lawyer should file a grievance with the proper authorities. Gov Jud R I 2. It has even been suggested that failure to file a grievance in such circumstances may itself be grounds for discipline against the lawyer. Cleveland Bar Ass'n Op. 92-3 (Apr. 16, 1993) (intimating that failure to file grievance might violate former OH DR 1-102(A)(5) as conduct prejudicial to the administration of justice). For a disciplinary case finding violation of that part of Gov Bar R IV 2 requiring lawyers to maintain a respectful attitude toward the courts, as well as violation of DR 8-102(B), see Columbus Bar Ass’n v. Vogel, 117 Ohio St.3d 108, 2008 Ohio 504, 881 N.E.2d 1244 (making false accusations that judge in criminal case was colluding with prosecutor to the detriment of his alleged client).
As members of the Bar, sitting judges are subject to the strictures of Ohio Rule 8.2(a). See, under the former OHCPR, Office of Disciplinary Counsel v. Ferreri, 85 Ohio St.3d 649, 710 N.E.2d 1107 (1999), where a judge in the juvenile division of the Cuyahoga County Court of Common Pleas was given an eighteen-month suspension from the practice of law, with the final twelve months stayed, and was suspended from his position as judge for six months without pay. Included in respondent's numerous inappropriate remarks were his statements to the media that
the [juvenile court] administrative judge was engaged in a conspiracy with officials of the detention center to "cover up" violations, that the administrative judge failed to provide leadership in solving the problems of the detention center, and that juvenile court was "out of control" . . . .
Id. at 653, 710 N.E.2d at 1110. The Court determined that "those comments which were specifically directed at a judge violated the Disciplinary Rules [i.e., OH DR 8-102, the only DR violation charged]." Id. at 654, 710 N.E.2d at 1111 (bracketed material added).
Much of the substantive content of a former ethical consideration, OH EC 8-6, is now found in Ohio Rule 8.2 cmt. , discussed above, and in the Preamble: A Lawyer's Responsibilities. As previously noted, Comment  urges lawyers to defend judges unjustly criticized. Paragraph 5 of the Preamble further states (as did EC 8-6) that
[a]djudicatory officials, not being wholly free to defend themselves, are entitled to receive the support of the bar against unjustified criticism. Although a lawyer, as a citizen, has a right to criticize such officials, the lawyer should do so with restraint and avoid intemperate statements that tend to lessen public confidence in the legal system.
This last admonition would seem to raise freedom of speech concerns, see Charles W. Wolfram, Modern Legal Ethics § 11.3.2, at 601-02 (1986), but we are unaware of any Ohio cases on point. Note that ABA, Annotated Model Rules of Professional Conduct 582 (5th ed. 2003) (commentary), remarks that "certain Code requirements that arguably discouraged lawyer criticism" have been deleted in the Model Rules, including the "appropriate language" admonition of EC 8-6. As seen above, however, Ohio's version of Preamble ¶ 5 (unlike ¶ 5 of the Model Rule Preamble), retains the flavor of former OH EC 8-6.
In at least one Code case, the aspirational (rather than mandatory) nature of EC 8-6 played a role in the decision. In Crawford County Bar Ass'n v. Nicholson, 66 Ohio St.3d 585, 613 N.E.2d 1025 (1993), the Board panel that heard the case based its proposed sanctions in part on respondent's letters to the editor in which he criticized the rulings of local judges in language the panel characterized as "intemperate." The Supreme Court refused to find a violation on these grounds because the conduct did not violate a disciplinary rule. Compare, however, Office of Disciplinary Counsel v. West, 85 Ohio St.3d 5, 706 N.E.2d 760 (1999), where the Court, in finding a violation of former OH DR 8-102(B), quoted in support the language from former EC 8-6 concerning the manner in which criticism of adjudicatory officials should and should not be made. Id. at 6-7, 706 N.E.2d at 761. The Court likewise looked to EC 8-6 in finding an OH DR 8-102(B) violation in Gardner:
A failure to investigate charges of judicial impropriety when EC 8-6 admonishes attorneys to "be certain" that their criticism has merit demonstrates reckless disregard for the truth.
Office of Disciplinary Counsel v. Gardner, 99 Ohio St.3d 416, 2003 Ohio 4048, 793 N.E.2d 425, at ¶ 33.
- Primary Ohio References: Ohio Rule 8.2(b)
- Background References: ABA Model Rule 8.2(b)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.17
- Commentary: ABA/BNA § 101:610, ALI-LGL § 114
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, The Lawyer's Guide to the Ohio Code of Professional Responsibility § 1.17 (1996).
Under Ohio Rule 8.2(b), a lawyer who is a candidate for judicial office "shall not violate the provisions of the Ohio Code of Judicial Conduct applicable to judicial candidates." "Judicial candidate," as defined in Canon 7,
means a person who has made a public announcement of candidacy for judicial office, declared or filed as a candidate for judicial office with the election authority, or authorized the solicitation or receipt of contributions or support for judicial office, whichever occurred first.
OH CJC Canon 7(A)(1).
In broad terms, the restrictions on the conduct of judicial candidates set forth in Canon 7 limit the content of candidate communications, campaign funding practices, and participation in partisan political activity. See, e.g., Berger v. Supreme Court of Ohio, 598 F. Supp. 69 (S.D. Ohio 1984) (finding that OH CJC Canon 7(B)(1)(c) [now contained in Canon 7(B)(2)] does not prohibit criticism of judicial administration and incumbents by judicial candidates, provided the criticism is truthful and not misleading). Canon 7 matters are also extensively discussed in Bd. of Comm'rs on Grievances & Discipline Op. 2003-8, 2003-8, 2003 Ohio Griev. Discip. LEXIS 8 (Dec. 5, 2003) (permitting magistrate who is judicial candidate to appear in judicial robe in campaign advertising for judicial seat so long as he or she is accurately identified as magistrate of court on which magistrate serves; prior Board Opinion 96-8 to the contrary withdrawn; additional instructions for judicial candidates as to what they can and cannot do set forth); and in Bd. of Comm'rs on Grievances & Discipline Op. 2002-8, 2002 Ohio Griev. Discip. LEXIS 11 (Aug. 9, 2002) (eleven guidelines, arising from mandatory rules of Canon 7, stated). These two opinions and the OH CJC should be consulted for more detail.
A number of pre-Rule cases dealt with the subject matter of former OH DR 8-102(A) -- false statement of fact concerning the qualifications of judicial candidates -- but since they involved statements made by lawyers who were themselves candidates and/or judges in the course of campaigns for judicial office, the cases proceeded under the rubric of the OH CJC, not the OHCPR. This pattern can be expected to continue under the terms of Rule 8.2(b). One of the more well-known pre-Rule cases is In re Complaint Against Judge Harper, 77 Ohio St.3d 211, 673 N.E.2d 1253 (1996), which involved conduct of a sitting judge. In Harper, an advertisement, placed on behalf of and approved by respondent about her opponent in an election for the seat on the Ohio Supreme Court then held by the opponent, falsely accused the incumbent of associating with dishonest lawyers intent on corrupting the legal system. The Court (comprised in this case of appellate judges from each appellate district, pursuant to Gov Jud R II 4) found that the conduct violated OH CJC Canon 2(A) [now Canon 2] (conduct that diminishes confidence in the judiciary) and OH CJC Canon 7(B)(1)(a) [now Canon 7(B)(1)] (requiring judge to maintain dignity of judicial office), and imposed a public reprimand.
Like cases include In re Judicial Campaign Complaint Against Brigner. 89 Ohio St.3d 1460, 732 N.E.2d 994 (2000) (sitting domestic relations judge falsely claimed in fund-raising letter that opponent "has never handled a divorce case," id.; OH CJC Canon 7(E)(1) violated); In re Judicial Campaign Complaint Against Carr, 76 Ohio St.3d 320, 667 N.E.2d 956 (1996) (allegation that candidate for municipal court knowingly misrepresented qualifications of opponent by reference in campaign letter to opponent's having never handled single housing-court case; panel's finding of clear violation of OH CJC Canon 7(B)(2)(f), when Carr failed to appear and charges and supporting testimony went unrefuted, affirmed); In re Judicial Campaign Against Hein, 95 Ohio Misc.2d 31, 706 N.E.2d 34 (Comm'n of Judges Appointed by Supreme Court 1999) (candidate's press release improperly labeled opponent as "soft on crime" and "liberal"; OH CJC Canon 7(E)(1) violated; court also held that OH CJC governs conduct of prosecuting attorney running as judicial candidate -- no exception exists for candidates who hold another public office).
What about misleading statements about one's own campaign as a judicial candidate? Once again, the pre-Rule cases that dealt with this issue were decided under the OH CJC. See, e.g., Office of Disciplinary Counsel v. Kaup, 102 Ohio St.3d 29, 2004 Ohio 1525, 806 N.E.2d 513 (violation of OH CJC Canons 7(D) and 7(E) where judicial candidate "deliberately misled voters by using a deceptive name for his campaign committee and then circulated advertisements that would lead voters to believe that an independent organization had examined the credentials of all of the candidates and concluded that respondent was the best-qualified candidate," id. at ¶ 13; six-month stayed suspension imposed as in Evans infra); Office of Disciplinary Counsel v. Evans, 89 Ohio St.3d 497, 733 N.E.2d 609 (2000) (candidate violated OH CJC Canon 7(E)(1) by claiming he was "Endorsed by Southern Ohio's Top Prosecutors and Sheriffs!" when in fact only a minority of the district's prosecuting attorneys and sheriffs had endorsed him).
In summary, Rule 8.2(a), and only 8.2(a), applies to lawyers who are not judges or judicial candidates. And 8.2(b) applies only to lawyers who are judicial candidates. Does the 8.2(a) known-false-statement prohibition apply as well to lawyer/candidates and lawyer/judges? Former DR 8-102(B) was invoked at least once against a lawyer/judge for making false accusations about another judge (Office of Disciplinary Counsel v. Ferreri, 85 Ohio St.3d 649, 710 N.E.2d 1107 (1999), discussed in section 8.2:200), but all of the pre-Rule cases against lawyer/judicial candidates discussed herein were decided under the provisions of the Judicial Code. While a case can be made that Rule 8.2(a), read literally, is applicable to lawyer/judicial candidates, the more likely result is that the judicial-candidate cases will continue to be the exclusive preserve of Rule 8.2(b) and, as incorporated by reference therein, the provisions of the OH CJC "applicable to judicial candidates."