Opinion No. 93-10

November 17, 1993

TOPIC: Duty to disclose or disqualify when former partner is party or lawyer.

DIGEST: When former partner is before bench, duty to disqualify is only for three years; duty to disclose is indefinite.

REFERENCES: Illinois Supreme Court Rule 63C(1)(b) of the Code of Judicial Conduct, Canon 3, (145 Ill.2d R.63); Illinois Supreme Court Rule 63C(1) of the Code of Judicial Conduct, Canon 3, (145 Ill.2d R.63) requires a judge to disqualify himself or herself when "the judge's impartiality might reasonably be questioned including but not limited to..." 63C(1)(c) "the judge was, within the preceding three years, associated in the private practice of law with any ...firm or lawyer currently representing any party..." People v. Storms, 155 Ill.2d 498 (1993).

FACTS

In a will contest case, the lawyer who drew the will was made a party and another lawyer in the same firm represented both the estate and the first lawyer. The judge had been a member of that firm about nine years previously.

QUESTION

Must the judge disclose or disqualify?

OPINION

Illinois Supreme Court Rule 63C(1)(b) of the Code of Judicial Conduct states that a judge shall disqualify where "the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it". Illinois Supreme Court Rule 63C(1)(b) is not applicable. Therefore, no disqualification is mandated by the rules because the provision in Illinois Supreme Court Rule 63C(1)(b) for a partner who was a lawyer "concerning the matter" refers to the "matter in controversy" now and not to the drafting of the will. It is assumed that the judge had no "personal knowledge of disputed evidentiary facts" concerning this will contest. If the judge did, Illinois Supreme Court Rule 63C(1)(a) would require disqualification.

The commentary to Canon 3E(1) of the ABA Model Code of Judicial Conduct (1990) states "A judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification." This would argue that the judge in this scenario should at least disclose. However, the scenario falls under Illinois Supreme Court Rule 63 C(1)(b) and there is no such commentary to that Rule in Illinois, while at the same time there are commentaries in the Illinois Code to Rule 63C(1)(a), (c), (d) and (e). Thus, the omission was more likely to have been intentional rather than oversight and thus, the plain language of Rule 63C(1)(c) should apply -- a partner is a problem for three years and that ends it. Further, if the sitting judge would have to disclose forever, that would place an unreasonable burden on the Court.

It is noted that potential liability on the part of the judge is not considered in this Opinion.