Opinion No. 93-2

September 21, 1993

TOPIC: Judge seeking advice from Illinois Judicial Ethics Committee regarding a pending or impending proceeding.

DIGEST: A judge may submit an ethical inquiry regarding a pending or impending proceeding to a judge who is a member of the Illinois Judicial Ethics Committee. However, because the committee contains non-judges, the prohibition against ex parte communications prevents that inquiry from being considered by the committee as a whole.

REFERENCES: Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct, Canon 63 (145 Ill.2d R.63).

FACTS

A judge wishes to obtain an opinion from the Illinois Judicial Ethics Committee ("the Committee") regarding the judge's duty to disqualify in a pending case.

QUESTION

Can the judge's inquiry be submitted to either individual Committee members or the Committee as a whole?

OPINION

The answer to this inquiry turns on whether a judge's consultation with the Committee violates the prohibition in the Code of Judicial Conduct against ex parte communications. That prohibition is contained in Illinois Supreme Court Rule 63A(4)of the Code of Judicial Conduct, which provides in pertinent part:

...A judge shall not initiate, permit or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding...

A judge is permitted to engage in ex parte communications with other judges. Illinois Supreme Court Rule 63A(4)(b) of the Code of Judicial Conduct permits judges to "consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges." (Emphasis added.) The Committee is composed of judges appointed by the Illinois Judges Association and lawyers (non-judges) appointed by the Chicago and Illinois State Bar Associations. Consequently, the key issue is whether ex parte communications with the Committee are prohibited by Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct because the Committee contains non-judges.

Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct was originally derived from Canon 3A(4) of the 1972 version of the ABA Model Code of Judicial Conduct. In August 1993, the Supreme Court amended Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct to incorporate certain provisions from Canon 3B(7) of the ABA's 1990 Model Code of Judicial Conduct. Like the prior version of Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct, the recent revision to that rule deletes a provision from the 1990 Model Code regarding a judge's ability to receive advice from a disinterested expert on the law. ABA Canon 3B(7) provides in pertinent part:

A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

The committee commentary to Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct reveals that this omission was intended to make the Illinois rule regarding permissible ex parte communications more narrow than the Model Code provision:

The committee believed that such a procedure (of giving parties notice of the judge's consultation with a legal expert and an opportunity to respond) would be too close to the former practice of using masters in chancery which was abolished by the 1962 amendment of the judicial article. Furthermore both bar association committees were concerned with the possibility of a judge seeking advice from a law professor... The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding. (Emphasis added.)

Ordinarily, each inquiry to this Committee is initially referred to a Committee member who has been designated to serve as a "facilitator". The facilitator provides the inquiring judge with a prompt response and, if requested and appropriate, refers the inquiry to the entire Committee for further consideration.

To comply with Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct only judges serve as facilitators with respect to inquiries concerning pending or impending proceedings. Moreover, inquiries concerning such proceedings cannot be considered by the Committee as a whole. Although communications with the non-judge Committee members would be filtered through the judge-facilitators, the inquiring judge would still receive -- and intend to receive -- advice from the non-judge members in violation of Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct. Nor would this problem be eliminated by having the inquiring judge or the facilitator submit an inquiry to the Committee as a whole in the form of a hypothetical question. It does not matter whether the Committee members know if the inquiry relates to a pending or impending matter; if it does so relate, the inquiring judge would violate Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct by obtaining the advice of the non-judges on the Committee regarding that question.

Under these circumstances, the Committee administrator will refer all inquiries relating to pending or impending proceedings, such as the current inquiry regarding a judge's duty to disqualify, for response by a judge-facilitator only. The Committee as a whole will consider actual inquiries only if they do not relate to pending or impending proceedings. However, as general guidance to judges and not to assist with specific inquiries, the Committee may issue opinions regarding ethics issues pertaining to hypothetical court proceedings.