Ohio Board Advisory Opinion Op. 25-01

Op. 25-01Ohiobar

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OPINION 2025-01
Issued April 4, 2025
Withdraws Adv. Op. 1998-02
Lawyer’s Disclosure of Disciplinary Grievance Filed Against Judge
SYLLABUS: A lawyer may not disclose in an affidavit of disqualification filed with the
Supreme Court that the lawyer or her client has filed a disciplinary grievance against the
judge when the grievance has not been certified as a formal complaint by the Board of
Professional Conduct.
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.
THOMAS J. MOYER OHIO JUDICIAL CENTER
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
614.387.9370
www.bpc.ohio.gov
OPINION 2025-01
Issued April 4, 2025
Withdraws Adv. Op. 1998-02
Lawyer’s Disclosure of Disciplinary Grievance Filed Against Judge
SYLLABUS: A lawyer may not disclose in an affidavit of disqualification filed with the
Supreme Court that the lawyer or her client has filed a disciplinary grievance against the
judge when the grievance has not been certified as a formal complaint by the Board of
Professional Conduct.
APPLICABLE RULES: Gov.Bar R. V
QUESTION PRESENTED:
May a lawyer disclose in an affidavit of disqualification filed with the Supreme
Court that the lawyer or her client has filed a disciplinary grievance against the judge?
ANALYSIS:
Background
A lawyer has filed a grievance against the judge presiding over a client’s case. The
lawyer is considering the filing of an affidavit of disqualification pursuant to R.C. 2701.03
with the Supreme Court seeking the removal of the judge from the case. The lawyer
asserts that her client has a constitutional right to an impartial adjudicator and believes it
is necessary to include information about the filing of the grievance in the affidavit of
disqualification.
Gov.Bar R. V(8)
Gov.Bar R. V(8) establishes when proceedings and documents related to the
investigation of a grievance remain confidential and when they are become public.
Grievances, proceedings, documents, and deliberations are confidential until the Board
Op. 2025-01 2
of Professional Conduct determines that probable cause exists and certifies a formal
complaint. Gov.Bar R. V(8)(A)(1). Once a complaint is certified by a probable cause panel,
subsequent proceedings and documents filed in the case become public. While a lawyer
or judge under investigation by disciplinary authorities may waive confidentiality of the
proceedings, the waiver does not extend to documents or deliberations expressly
designated as confidential under the rule. Gov.Bar R. V(8)(A)(1)(b).
Gov.Bar R. V(8)(A)(1)(b) ensures that preliminary misconduct investigations of
judges and lawyers are protected from public disclosure, ensuring that unverified
allegations do not result in reputational damage to the lawyer or judge. In In re
Disqualification of Krueger, 74 Ohio St.3d 1267 (1995), the affiant-lawyer stated in her
affidavit of disqualification that she intended to file a disciplinary complaint against the
judge. The Court cautioned that under the predecessor rule to Gov.Bar R. V(8)
"disciplinary complaints remain private until and unless formal proceedings begin before
the [Board of Professional Conduct].” Id. at 1268. Similarly, in State ex rel. McCaffrey v.
Mahoning Cty. Prosecutor's Office, 2012-Ohio-4246, the Court emphasized that “the rules
safeguarding the confidentiality of the grievance process apply not only to participants
in the [disciplinary] process, but to all attorneys.”
Disciplinary Cases
The Supreme Court has consistently emphasized a lawyer’s duty to uphold the
confidentiality of the disciplinary grievance process, reinforcing the application of
Gov.Bar R. V(8) in cases where a lawyer files an affidavit of disqualification.
The intentional disclosure of grievance related information about a judge in an
affidavit of disqualification case was at issue in Disciplinary Counsel v. Pullins, 2010-Ohio-
624. The lawyer was ultimately sanctioned for statements he made in an affidavit of
disqualification he filed against a judge and for other professional misconduct. In his
affidavit the lawyer revealed that he had previously filed three separate grievances
against the judge due to the judge’s alleged refusal to follow the law and that the judge
had violated the Code of Judicial Conduct.
The Supreme Court has also addressed a lawyer’s duty to uphold the
confidentiality of the grievance process in other contexts. For example, in Disciplinary
Counsel v. Oviatt, 2018-Ohio-5091, the lawyer violated the confidentiality of the grievance
Op. 2025-01 3
process by referencing and attaching portions of a grievance he had filed against
appellate judges to a filing he submitted to a common pleas court. Similarly, the judge in
Ohio State Bar Assn. v. Evans, 2013-Ohio-4992 was disciplined for violating the predecessor
to Gov.Bar R. V(8) for removing a public defender from 64 cases due to a conflict that had
arisen between the lawyer and the judge and for implying in his entries that the lawyer
was the subject of a disciplinary investigation.
Grievance Not Relevant to Disqualification Determination
Although disclosure of a grievance is prohibited, it has no bearing on a judge’s
disqualification. A former Chief Justice stated that a judge is not disqualified "solely
because a party or counsel in a pending case has filed a grievance against the judge."
Krueger at 1268. To hold otherwise would invite parties to file disciplinary grievances
solely to disqualify a judge, promoting forum-shopping and disrupting the orderly
administration of judicial proceedings. In re Disqualification of Eighth Dist. Court of Appeals,
2017-Ohio-2840, ¶ 6. Moreover, “[t]]he disclosure by a lawyer that a grievance has been
filed alleging the same facts as are set forth in an affidavit of disqualification provides no
additional information that will aid the Chief Justice in determining whether
disqualification is appropriate.“ Pullins at ¶ 15.
Disciplinary grievances and affidavits of disqualification serve separate and
distinct purposes. The removal of a judge is based on direct evidence of bias, partiality,
or misconduct relevant to the case at hand. In re Disqualification of Russo, 2005-Ohio-7146.
Thus, the reference of the filing of a grievance in an affidavit of disqualification is not
only prohibited by Gov.Bar R. V(8), but is also irrelevant to the disqualification analysis.

OCR transcription; preserved printed pages are authoritative

Ohio Board of Professional Conduct

OPINION 2025-01 Issued April 4, 2025 Withdraws Adv. Op. 1998-02

Lawyer's Disclosure of Disciplinary Grievance Filed Against Judge

SYLLABUS: A lawyer may not disclose in an affidavit of disqualification filed with the Supreme Court that the lawyer or her client has filed a disciplinary grievance against the judge when the grievance has not been certified as a formal complaint by the Board of Professional Conduct.

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.

Ohio Board of Professional Conduct

THOMAS J. MOYER OHIO JUDICIAL CENTER 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431 614.387.9370 www.bpc.ohio.gov

OPINION 2025-01 Issued April 4, 2025 Withdraws Adv. Op. 1998-02

Lawyer's Disclosure of Disciplinary Grievance Filed Against Judge

SYLLABUS: A lawyer may not disclose in an affidavit of disqualification filed with the Supreme Court that the lawyer or her client has filed a disciplinary grievance against the judge when the grievance has not been certified as a formal complaint by the Board of Professional Conduct.

APPLICABLE RULES: Gov.Bar R. V

QUESTION PRESENTED:

May a lawyer disclose in an affidavit of disqualification filed with the Supreme Court that the lawyer or her client has filed a disciplinary grievance against the judge?

ANALYSIS:

Background

A lawyer has filed a grievance against the judge presiding over a client's case. The lawyer is considering the filing of an affidavit of disqualification pursuant to R.C. 2701.03 with the Supreme Court seeking the removal of the judge from the case. The lawyer asserts that her client has a constitutional right to an impartial adjudicator and believes it is necessary to include information about the filing of the grievance in the affidavit of disqualification.

Gov.Bar R. V(8)

Gov.Bar R. V(8) establishes when proceedings and documents related to the investigation of a grievance remain confidential and when they are become public. Grievances, proceedings, documents, and deliberations are confidential until the Board

2

Op. 2025-01

of Professional Conduct determines that probable cause exists and certifies a formal complaint. Gov.Bar R. V(8)(A)(1). Once a complaint is certified by a probable cause panel, subsequent proceedings and documents filed in the case become public. While a lawyer or judge under investigation by disciplinary authorities may waive confidentiality of the proceedings, the waiver does not extend to documents or deliberations expressly designated as confidential under the rule. Gov.Bar R. V(8)(A)(1)(b).

Gov.Bar R. V(8)(A)(1)(b) ensures that preliminary misconduct investigations of judges and lawyers are protected from public disclosure, ensuring that unverified allegations do not result in reputational damage to the lawyer or judge. In In re Disqualification of Krueger, 74 Ohio St.3d 1267 (1995), the affiant-lawyer stated in her affidavit of disqualification that she intended to file a disciplinary complaint against the judge. The Court cautioned that under the predecessor rule to Gov.Bar R. V(8) "disciplinary complaints remain private until and unless formal proceedings begin before the [Board of Professional Conduct]." Id. at 1268. Similarly, in State ex rel. McCaffrey v. Mahoning Cty. Prosecutor's Office, 2012-Ohio-4246, the Court emphasized that "the rules safeguarding the confidentiality of the grievance process apply not only to participants in the [disciplinary] process, but to all attorneys."

Disciplinary Cases

The Supreme Court has consistently emphasized a lawyer's duty to uphold the confidentiality of the disciplinary grievance process, reinforcing the application of Gov.Bar R. V(8) in cases where a lawyer files an affidavit of disqualification.

The intentional disclosure of grievance related information about a judge in an affidavit of disqualification case was at issue in Disciplinary Counsel v. Pullins, 2010-Ohio- 624. The lawyer was ultimately sanctioned for statements he made in an affidavit of disqualification he filed against a judge and for other professional misconduct. In his affidavit the lawyer revealed that he had previously filed three separate grievances against the judge due to the judge's alleged refusal to follow the law and that the judge had violated the Code of Judicial Conduct.

The Supreme Court has also addressed a lawyer's duty to uphold the confidentiality of the grievance process in other contexts. For example, in Disciplinary Counsel v. Oviatt, 2018-Ohio-5091, the lawyer violated the confidentiality of the grievance

3

Op. 2025-01

process by referencing and attaching portions of a grievance he had filed against appellate judges to a filing he submitted to a common pleas court. Similarly, the judge in Ohio State Bar Assn. v. Evans, 2013-Ohio-4992 was disciplined for violating the predecessor to Gov.Bar R. V(8) for removing a public defender from 64 cases due to a conflict that had arisen between the lawyer and the judge and for implying in his entries that the lawyer was the subject of a disciplinary investigation.

Grievance Not Relevant to Disqualification Determination

Although disclosure of a grievance is prohibited, it has no bearing on a judge's disqualification. A former Chief Justice stated that a judge is not disqualified "solely because a party or counsel in a pending case has filed a grievance against the judge." Krueger at 1268. To hold otherwise would invite parties to file disciplinary grievances solely to disqualify a judge, promoting forum-shopping and disrupting the orderly administration of judicial proceedings. In re Disqualification of Eighth Dist. Court of Appeals, 2017-Ohio-2840, I 6. Moreover, "[t]]he disclosure by a lawyer that a grievance has been filed alleging the same facts as are set forth in an affidavit of disqualification provides no additional information that will aid the Chief Justice in determining whether disqualification is appropriate." Pullins at I 15.

Disciplinary grievances and affidavits of disqualification serve separate and distinct purposes. The removal of a judge is based on direct evidence of bias, partiality, or misconduct relevant to the case at hand. In re Disqualification of Russo, 2005-Ohio-7146. Thus, the reference of the filing of a grievance in an affidavit of disqualification is not only prohibited by Gov.Bar R. V(8), but is also irrelevant to the disqualification analysis.

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