On April 8, 2022, the Ohio Board of Professional Conduct issued two new Advisory Opinions relating to the conduct of lawyers and judges.

Ohio Board of Professional Conduct Opinion 2022-02 

Judicial Membership and Leadership in County or State Party Executive Committees, Political Party Clubs, and County Boards of Elections

In Opinion 2022-02 the Board of Professional Conduct held that a judicial officer is prohibited from serving as a member of a state or county executive committee of a political party pursuant to Jud.Cond.R. 4.1(A). The Board also recommended that judicial officers avoid assuming leadership roles in political party clubs. While leadership in these clubs is not strictly prohibited by the Rules of Judicial Conduct, the Board recommends against it because it may suggest that the judge is subject to political influence and erode public confidence in the independence and impartiality of the judiciary.

The Board also held that judicial officers may not serve on county boards of election. Under Jud.Cond.R. 3.4, judicial officers may accept appointments to government boards that are concerned with the law, the legal system, or the administration of justice. The Board concluded the duties and functions of county boards of elections are unrelated to any of these subjects enumerated in Jud.Cond.R. 3.4.

Ohio Board of Professional Conduct Opinion 2022-03

Lawyer Communication with Government Entity Represented by Counsel

In Opinion 2022-03 the Board of Professional Conduct addressed when a lawyer may communicate directly with public officials represented by government counsel. The Board held that Prof.Cond.R. 4.2 prohibits communication with represented public officials and employees and that Comment [7] to Prof.Cond.R. 4.2 defines those public officials and employees who fall within the “no-contact group.”  The “no-contact group” includes those who regularly consult with the government’s lawyer on the matter, those with authority to obligate the government on the matter, and those whose acts or omissions in connection with the matter are imputed to the government.

The Board recognized, however, that there are some direct communications by a lawyer to public officials and employees that are authorized by law. A lawyer may communicate directly with public officials on behalf of clients when premised on the clients’ constitutional right to petition the government for redress of grievances. For a direct communication to fall within this category, it must meet these three conditions:

1. The sole purpose of the lawyer’s direct communication must be to address a policy issue, rather than the negotiation or litigation of a specific claim.
2. The contacted official or employee must have the authority to take or recommend action concerning the policy issue including redress of the client’s grievance.
3. The lawyer must provide government counsel with reasonable notice of an intent to directly contact the government officials to afford them an opportunity to obtain the advice of counsel before entering into the communication.

If these three conditions are met, consent to the direct communication by government counsel is not required.

A lawyer may also speak on behalf of clients in formal public meetings of government officials whether or not counsel for the government is present. However, the Board advised that lawyers should identify themselves as the legal representative of the client preferably in advance of the meeting to give government officials an opportunity to consult with counsel.

The Board also made clear that a government lawyer may not unilaterally claim to represent all employees of a government organization to prevent direct communication with opposing counsel. A government lawyer should not instruct officials or employees outside of the no-contact group not to communicate with adverse counsel in a matter.

As always, if you have any questions, please contact us. We are here to help.