The Ohio Board of Professional Conduct issued its first advisory opinions of the year in early April: 2025-1 and 2025-2. This article discusses 2025-1 and next week’s article discusses 2025-2.

Advisory Opinion 2025-1 re-examines the question of whether an attorney can disclose in an affidavit for disqualification the existence of a disciplinary grievance filed against a judge. This issue was last reviewed in Advisory Opinion 98-2 (withdrawn by 2025-1).

Analyzing Gov. Bar Rule V(8), Opinion 2025-1 emphasizes that unless a grievance complaint is certified by a probable cause panel, the initial complaint and its investigation’s proceedings and documents are strictly confidential. “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.” Opinion 2025-1 at p. 2.

Over the last 30 years, case law has affirmed that this strict rule applies to both lawyers and judges. In 2013, a judge was disciplined for indicating in entries that a public defender was under disciplinary investigation. In 2010 and 2018 cases, attorneys were sanctioned for referencing grievances filed against the judges in their court filings. The Board concludes in this Opinion that the Ohio Supreme Court has been consistent that lawyers and judges have an obligation to protect the confidentiality of the disciplinary grievance process.

Opinion 2025-1 further reminds attorneys of the factors for judicial disqualification. “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.” Opinion 2025-2 at p. 3, citing Singer v. Singer (In re Disqualification of Russo), 2005-Ohio-7146 (emphasis added).

Citing a 2010 disciplinary ruling, Opinion 2025-1 cautions that the existence of a disciplinary complaint itself is irrelevant to a disqualification: “[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.” However, consistent with Advisory Opinion 98-2, Opinion 2025-1 does not prohibit the disclosure of the same facts underlying a disciplinary complaint in a disqualification proceeding. If the facts underlying the grievance are directly relevant to “bias, partiality, or misconduct,” an attorney may consider including them in an affidavit for disqualification so long as there is no reference to the grievance complaint or investigation prior to a certification by a panel.

Beyond the risk of disciplinary action, citing an uncertified grievance complaint and failing to include direct, relevant evidence in an affidavit to disqualify a judge may cause the motion to be stricken or overruled. This adverse ruling could lead to a claim of legal malpractice if the client believes the failure to disqualify the sitting judge caused quantifiable harm. Recognizing this important distinction could be the difference between a favorable ruling or significant consequences.

Attorneys insured by OBLIC are entitled to a complimentary ethics consult per policy period. If you are faced with a scenario like the one described in Opinion 2025-1, you may benefit from a confidential ethics consultation with outside ethics counsel. Ethics consultations may include the review of a drafted affidavit for disqualification to ensure it aligns with with ethical rules. Our insured attorneys are encouraged to call or email our Loss Prevention Hotline by contacting OBLIC’s Loss Prevention professionals.

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.