Ohio Board Advisory Opinion Op. 22-10

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2022-10
Issued October 7, 2022
Withdraws Adv. Op. 2004-3

Magistrate Serving as a Trustee of a Nonprofit Condominium Association

SYLLABUS: A magistrate may serve as a trustee of a nonprofit condominium association
if the extrajudicial activity does not undermine the magistrate’s independence, integrity,
or impartiality, lead to frequent disqualification, or interfere with the performance of

judicial duties.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

e> Ohio Board of Professional Conduct

65 SOUTH FRONT STREET, 5™ FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
Hon. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2022-10
Issued October 7, 2022
Withdraws Adv. Op. 2004-3

Magistrate Serving as a Trustee of a Nonprofit Condominium Association

SYLLABUS: A magistrate may serve as a trustee of anonprofit condominium association
if the extrajudicial activity does not undermine the magistrate’s independence, integrity,
or impartiality, lead to frequent disqualification, or interfere with the performance of

judicial duties.
APPLICABLE RULES: Jud.Cond.R. 1.3, 2.1, 2.11, 3.1 3.7, 3.9, 3.10, 3.11
QUESTION PRESENTED:

Is it proper for a magistrate to serve as a trustee of a nonprofit condominium

association in which the magistrate resides and owns a condominium?
OPINION:

Magistrates are generally permitted to engage in extrajudicial activities, including
service on nonprofit boards sponsored by or on behalf of educational, religious,
charitable, fraternal, or civic organizations, but are not permitted to serve as an officer,
director, manager, advisor, or employee of a for-profit business. Jud.Cond.R. 3.7;
Jud.Cond.R. 3.11.

Condominium association boards typically perform or oversee a variety of
functions on behalf of the owners of each condominium unit. For example, a board may
engage in the investment of reserve funds, enter into agreements with contractors and

vendors, engage in collection activities of condominium fees, and resolve disputes

Op. 2022-10 2

between residents. While a nonprofit condominium association is not necessarily a civic
organization nor a business entity, it has characteristics of both. MA Sup. Jud. Ct. Comm.
Jud Eth. 2001-6 (2001). The activities of a condominium association trustee, while
performed in part on behalf of other property owners, helps to protect the trustee’s own
real estate investment. In the Board’s opinion, a magistrate’s ownership of a
condominium and membership on the condominium association board is more akin to
the permissible participation in a nonprofit business entity that manages the personal
financial resources held by the magistrate. Jud.Cond.R. 3.11(B)(2), cmt.[1]. Va. Jud. Ethics
Adv. Comm. Op. 00-9 (2000).

Based on the foregoing analysis, the Board concludes that it is proper for a
magistrate to serve as a trustee of a condominium association when other rules of judicial
conduct governing the magistrate’s independence, integrity, and impartiality are
followed. MA. Sup. Jud. Ct. Comm. Jud. Eth. 2001-6 (2001); Tx. Jud. Eth. Comm. Op. 279
(2001); S.C. Adv. Comm. Std. Jud. Cond. Op. 10-2017 (2017). First, a magistrate must
disqualify himself or herself if the condominium association is a party appearing in a
matter before the magistrate. Jud.Cond.R. 2.11. If recusal is necessary on a more frequent
basis, the magistrate should resign from the association board. Jud.Cond.R. 3.1(B);
Jud.Cond.R 3.11(C)(2). Lastly, the magistrate cannot engage in activities with the
association board to such a degree that it would detract or interfere with the proper
performance of his or her judicial duties. Jud.Cond.R. 3.11(C)(1). Consequently, a
magistrate should decline to serve as trustee if the position will result in interference with

his or her judicial duties or cause his or her frequent unavailability. Jud.Cond.R. 2.1, cmt.

[1].

If a management company is not retained by the association board to assist it in
the performance of its administrative functions and duties, the individual trustees may
be required to perform duties and activities on behalf of the association that often require
direct dealings with unit owners and third parties. A magistrate serving on an association
board should ensure that any assigned duties are compatible with his or her ethical
obligations as a judicial officer. A fulltime magistrate serving as a trustee may not engage
in the resolution of disputes between residents due to the restriction against engaging in

mediation or arbitration services. Jud.Cond.R. 3.9. Nor should a magistrate, because of

Op. 2022-10 3

their legal education and bar admission, act in any capacity as a legal advisor or

representative for the association board. Jud.Cond.R. 3.10.

Because of a magistrate’s judicial role, he or she must avoid abusing the prestige
of office when dealing with unit owners or third parties while serving as a trustee of an
association board. At no time should a magistrate use his or her position or title as a

judicial officer in connection with board service. Jud.Cond.R. 1.3; Jud.Cond.R. 3.11, cmt.

[1].