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Ohio Legal Ethics Narrative
I. CLIENT-LAWYER RELATIONSHIP
Ohio Rule 1.12 is substantively identical to the Model Rule.
The following sections of the Ohio Code of Professional Responsibility are listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 1.12: DR 9-101(A) & (B), EC 5-21.
1.12:200 Former Judge, Arbitrator, Mediator, or Other Third-Party Neutral Representing Client in Same Matter
- Primary Ohio References: Ohio Rule 1.12(a)
- Background Reference: ABA Model Rule 1.12(a)
- Commentary: ABA/BNA § 91:4501
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 9.14-9.18
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Laywer's Guide to the Ohio Code of Professional Responsibility §§ 9.14-9.18 (1996).
Central to our notion of justice is that of the neutral decision maker. As a general matter, one who is or has been involved in resolving a dispute should not also be a partisan for one of the disputants. This concern extends not only to concurrent-role conflicts (serving simultaneously as representative of a party and as the decision maker) but also to successive-role conflicts (representing a party in connection with a matter in which the lawyer participated to a significant degree as a decision maker). Ohio Rule 1.12(a) addresses the second concern. It provides as follows:
Except as stated in division (d) [as to which see section 1.12:500], a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such person or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
As noted in Comment , this provision parallels that for government officers and employees in Ohio Rule 1.11(a). Also, as noted in ABA, Annotated Model Rules of Professional Conduct 195 (6th ed. 2007) (commentary), court rules may be applicable and can be more restrictive in terms of limitations imposed upon former law clerks. For example, they typically apply to law clerks irrespective of whether the clerk was "personally and substantially" involved in a particular matter. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 16.3 (3d ed. Supp. 2005-1).
In applying the Rule one must identify (1) the nature of the role the lawyer played as a decision maker, (2) the degree of the lawyer's involvement in the matter when serving in the decision-making role, (3) whether the current representation and the former activity involve the same matter, (4) the nature of the lawyer's current position, and (5) whether appropriate consent has been obtained when required.
The nature of the role the lawyer played as a decision maker: Ohio Rule 1.12(a) applies to a wide variety of decision makers – judges, other adjudicative officers, law clerks and third-party neutrals, including arbitrators and mediators.
Comment  to the Rule points out that the phrase "adjudicative officers" includes "such officials as judges pro tempore, magistrates, special masters, hearing officers, . . . other parajudicial officers . . . [and] part-time judges. Ohio Rule 1.12 cmt. .
The extension of the Rule to third-party neutrals codifies the aspirational goal contained in former OH EC 5-21. See Ohio Code Comparison to Rule 1.12.
With respect to law clerks, the Rule phrasing is somewhat ambiguous. It clearly covers law clerks for a judge or other adjudicative officer. Were a third-party neutral to employ a law clerk, the spirit of the Rule should cover that clerk as well, but the text does not do so explicitly.
Finally, the premise of the Rule is to help maintain neutrality of the nonpartisan decision-maker. But in some situations arbitrators are not meant to be neutral; they are selected to be partisan. Ohio Rule 1.12(e) expressly provides that such arbitrators fall outside the 1.12(a) prohibition. See section 1.12:500.
The degree of the lawyer's involvement in the matter when serving in the decision-making role: As is the case with Ohio Rule 1.11(a)(2), the operative words are participation "personally and substantially" as a judge or other adjudicative officer, law clerk, or third-party neutral. Ohio Rule 1.12(a). This is a test similar to that imposed by the analogous former disciplinary rule. Under the OHCPR, the private employment restrictions applied to matters "upon the merits of which" the lawyer "acted in a judicial capacity." OH DR 9-101(A). As noted in ABA, Annotated Model Rules of Professional Conduct 196, 197 (6th ed. 2007) (commentary), "[p]articipation on the merits or in settlement discussions is considered personal and substantial. . . . Ministerial or nominal responsibility [, however,] will not require disqualification." (See, e.g., under former OH DR 9-101(A), Office of Disciplinary Counsel v. Christ, 74 Ohio St.3d 308, 658 N.E.2d 746 (1996); Bd. of Comm'rs on Grievances & Discipline Op. 2006-6, 2006 Ohio Griev. Discip. LEXIS 4, at *7 (June 9, 2006) ("When an attorney serving as a CSEA administrative hearing officer participates in a matter, renders a determination, or issues an administrative order, he or she is considered to have . . . acted on the merits.").) The ministerial or nominal responsibility distinction is clearly contemplated under the Ohio Rules. Particularly pertinent are the examples in Ohio Rule 1.12 cmt. .
As the comment makes clear, a former judge on a multimember court now in private practice may represent a client in a matter pending before that court if the former judge did not participate in that matter. Moreover, a former judge is not precluded from acting in a matter on behalf of a client where the judge's involvement was merely incidental or remote administrative responsibility not affecting the merits. Pursuant to divisions (B)(2) and (C)(2) of the Compliance provisions of the Ohio Code of Judicial Conduct (OH CJC), part-time judges and judges pro tempore may not act as a lawyer in any proceeding in which he or she had acted as judge or in any "related" proceeding. According to Comment , these OH CJC provisions, although phrased differently, "correspond in meaning" to Rule 1.12(a). Ohio Rule 1.12 cmt. .
Whether the current representation and the former activity involve the same matter: Ohio Rule 1.12 does not contain a definition of "matter"; Ohio Rule 1.11(e) (identical to MR 1.11(e)) defines the term "[a]s used in this rule." Despite this limitation, Comment  is consistent with our suspicion that the intent was to have the 1.11(e) definition -- at least insofar as it includes "any judicial or other [adjudicative and third-party neutral] proceeding" -- apply in 1.12 as well: "This rule generally parallels Rule 1.11." Ohio Rule 1.12 cmt. . Hazard and Hodes' take on this issue is puzzling to say the least. According to them, "there is no need for a special definition of what constitutes a 'matter,' as there is in Rule 1.11(e)," "because judges customarily are involved in deciding a series of discrete 'matters' that appear on their dockets, . . . rather than the potpourri of more broadly based policy issues typically facing other public officials." So far so good. But they then conclude that "[i]n any event, if that definition were made applicable to Rule 1.12, it would lead to the somewhat redundant result that virtually every matter a judge handled [subject, of course, to the "personally and substantially" requirement] would be within the scope of the ban." 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 16.3, at 16-6 & 16-7 (3d ed. Supp. 2005-1) (bracketed material added). Isn't this "somewhat redundant result" precisely what Rule 1.12(a) calls for?
The "same matter" test of Rule 1.12 is the mirror image of both OH CJC Canon 3(E)(1)(b) and 28 USC § 455 (2000), pursuant to which Ohio and federal judges must disqualify themselves from a proceeding if they served as a lawyer "in the matter in controversy."
The nature of the lawyer's current position: Pursuant to Ohio Rule 1.12(a), the employment prohibited is representation of "anyone" in a matter in which the lawyer participated personally and substantially as an adjudicative officer, law clerk, or third-party neutral, in the absence of informed, written consent by all parties to the proceeding. (So far as we have been able to determine, the use of "anyone," rather than "client" (as in 1.11(a)), has not been explained or discussed. Hazard and Hodes italicize the word but make no comment on it. 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Laywering § 16.3, at 16-6 (3d ed. Supp. 2005-1)). While Rule 1.12 is entitled "former" judges, etc., the prohibition by its terms does not seem to distinguish between preventing such representation by a sitting adjudicative officer or third-party neutral, and preventing representation by such persons after they have left the bench or a third-party neutral position. Precedent under the former OHCPR is in accord. See Ohio State Bar Ass'n. v. Gibson, 55 Ohio St.2d 99, 377 N.E.2d 751 (1978); Bd. of Comm'rs on Grievances & Discipline Op. 2001-5, 2001 Ohio Griev. Discip. LEXIS 6 (Oct. 5, 2001) (reading former OH DR 9-101(B) as applied to court-employed mediator as if it read "has" substantial responsibility while he "is" public employee).
A case raising questions related to, but not covered by Rule 1.12 (or the then-applicable OHCPR), is Goodman, Weiss, Miller, LLP v. Wright, 104 Ohio St.3d 1420, 2004 Ohio 6675, 819 N.E.2d 298. In Goodman Weiss, the relator sought a writ of prohibition to preclude respondent, a retired Supreme Court justice who on a number of occasions sits as a visiting intermediate appellate judge pursuant to assignment by the Chief Justice, from acting as an expert witness for plaintiffs in a malpractice case against Goodman Weiss. Although none of the cases in which Judge Wright had sat or was sitting were related in any way to the malpractice case at bar, Goodman Weiss argued that such a practice violated various Canons of the Code of Judicial Conduct, including Canon 2, prohibiting a judge from engaging in business or financial dealings perceived to exploit his or her judicial position. While this allegation raised some interesting questions (cf. Bd. of Comm'rs Op. 98-12, 1998 Ohio Griev. Discip. LEXIS 15 (Dec. 4, 1998)), the Supreme Court granted the motions to dismiss the writ without opinion.
Whether appropriate consent has been obtained when required: If the prohibition in Ohio Rule 1.12(a) is triggered, representation is still permissible if "all parties to the proceeding give informed consent, confirmed in writing." For the requirements to secure informed consent and confirmation in writing, see Ohio Rule 1.0(f) & (b). Note also that Rule 1.12 does not state a time period within which the informed consent and written confirmation must be provided.
From the Rule's language, it is not entirely clear who must consent. Hazard and Hodes provide an answer that makes sense - since the issue arises with respect to representation in the same "matter" as that in which the lawyer had participated as a judge, other adjudicative officer, or third-party neutral, the "parties" from whom consent is required will most likely be the same as well:
The parties who were involved in the earlier matter were on the scene and know how the judge conducted their dispute; thus, they stand as good representatives of the public in assessing whether those suspicions [of possible impropriety] can be allayed in any particular case. Accordingly, their ability to lift the bar carries the analogy to Rule 1.11 a step further: it is as if the parties to the dispute constitute the former "government agency" that "employed the judge to adjudicate their specific dispute.
1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 16.3, at 16-6 (3d ed. Supp. 2005-1) (bracketed material added). See also id. at 16-13, citing in footnote a Pennsylvania Ethics Opinion in which a prosecutor, formerly a law clerk for a judge on the same murder case, had to obtain consent from all parties to the defendant's appeals of his convictions, before the prosecutor could sign the brief in opposition to the appeals. In those instances in which there might be different or additional parties in the subsequent proceeding, their consent should be obtained as well.
See also Ohio State Bar Ass'n Informal Ops. 82-2 (Aug. 3, 1982) and 75-16 (Oct. 29, 1975), opining that a divorce mediator could represent a party post-mediation to finalize the divorce or dissolution on certain conditions, one of which was the consent of both parties to the representation after each had the opportunity to consult independent counsel. This condition would bring the result within the ambit of Ohio Rule 1.12(a), so long as the informed consent was confirmed in writing.
Confidentiality and service as a judge, adjudicative officer, third-party neutral or law clerk: The Rule itself is silent on duties of confidentiality arising out of playing a judicial, adjudicatory, clerk or third-party neutral role. Because the lawyer is not representing a client in those roles, Ohio Rule 1.6 does not apply. Other sources of law, however, such as those pertaining to third-party neutrals, do impose confidentiality requirements. See Ohio Rule 1.12 cmt. ; ORC 2317.02(H). (According to the technical amendments made to the Rules on January 31, 2007, the Ohio Code Comparison to Rule 1.12 was revised to delete the reference to ORC 2317.02(H) because it had been repealed prior to the effective date of the Rules. Try as we might, we can find no indication that 2317.02(H) has been repealed. Nor, apparently, can Baldwin's or Page's; both include ORC 2317.02(H) in their 2007 Supplements, as do LEXIS and Westlaw on their Ohio Revised Code websites.)
- Primary Ohio References: Ohio Rule 1.12(b)
- Background References: ABA Model Rule 1.12(b)
- Commentary: ABA/BNA § 91:4010, ALI-LGL § 125, Wolfram § 8.10.3
The Ohio Rule on this matter states as follows:
A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally or substantially, but only after the lawyer has notified the judge or other adjudicative officer.
Ohio Rule 1.12(b). The ban of Rule 1.12(b) on adjudicative officers or third-party neutrals (like the ban on government officers and employees in Rule 1.11(d)(2(ii)) applies to matters in which the officer or neutral "is" participating; it does not apply with respect to completed matters. The point is confirmed by Comment , which states that the Rule 1.12(b) prohibition concerns a matter in which the lawyer "is presently acting as an adjudicative officer or neutral, during the time that the lawyer has that role"; the prohibition does not apply "where the lawyer's role has completely ended. Thus, a lawyer who, while acting as an independent mediator, attempted to settle a matter that remains pending is not prohibited from negotiating for employment with one of the parties or one of the lawyers in the matter after the mediation has concluded but while the case is still pending." Ohio Rule 1.12 cmt. . And, as Hazard and Hodes note, the rule is further relaxed for law clerks, because everyone understands that clerks, typically hired for a limited period of a year or two, are "always 'on the market.'" 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 16.5, at 16-12 (3d ed. Supp. 2005-1).
- Primary Ohio References: Ohio Rule 1.12(c)
- Background References: ABA Model Rule 1.12(c)
- Commentary: ABA/BNA § 91:4503; Wolfram § 7.6.4
Ohio Rule 1.12(c)(1) expressly provides for "timely" screening of a lawyer disqualified under 1.12(a) so that members of his or her firm are not precluded from representation in a matter in which the disqualified lawyer participated personally and substantially. For a definition of screening, see Ohio Rule 1.0(l). Details on proper screening are discussed in Rule 1.0 cmts.  &  and in section 1.10:300. Pursuant to this subdivision, the disqualified lawyer must also be apportioned no part of the fee from the matter. Rule 1.12(c)(2) further requires that written notice must "promptly" be given to the parties and any appropriate tribunal to enable them to ascertain compliance with the Rule. Consent is not required. To be prompt, notice generally should be given "as soon as practicable after the need for notice becomes apparent." However, if giving such notice would likely substantially injure a current client, reasonable delay in providing notice is permissible. Ohio Rule 1.12 cmt. .
- Primary Ohio References: Ohio Rule 1.12(d)
- Background References: ABA Model Rule 1.12(d)
- Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.114-5.116
The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 5.114-5.116 (1996).
The general rule stated in Ohio Rule 1.12(a), barring subsequent representation in a matter in which the lawyer participated personally and substantially as an arbitrator, mediator, or other third-party neutral, has a limited exception in Ohio Rule 1.12(d). That subdivision provides that an "arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party." (Emphasis added.) Nonpartisans on the panel, typically selected by the partisans chosen by each side, do not come within the division (d) exemption and Rule 1.12 applies "with full force" to them. 1 Geoffrey C. Hazard, Jr. & W. Williams Hodes, The Law of Lawyering § 16.6, at 16-12 (3d ed. Supp. 2005-1).