Opinion No. 94-19

August 25, 1994

TOPIC: Judge who was a former assistant State's Attorney providing information to the assistant State's Attorney assigned to try the case after reversal by the Appellate Court.

DIGEST: The Judge may provide information to the assistant State's Attorney, but cannot give the assistant State's Attorney legal advice.

REFERENCES: Illinois Supreme Court Rule 65F of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65); "Becoming a judge: Problems with leaving a law practice", Judicial Conduct Reporter, Volume 6, Number 3, Fall 1984 and Volume 6, Number 4, Winter 1985; Judicial Advisory Florida Opinion 75-22; Illinois Supreme Court Rule 62B of the Code of Judicial Conduct, Canon 2 (145 Ill.2d R. 62); Illinois Supreme Court Rule 63C(1)(b) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 63A(4) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Supreme Court Rule 64B of the Code of Judicial Conduct, Canon 4 (145 Ill.2d R. 64);

FACTS

As a former assistant State's Attorney, the judge tried a case which was reversed on appeal and is now about to be retried. The assistant State's Attorney assigned to try the case anew seeks a detailed discussion about the case. The judge will not be the trial judge.

QUESTION

May the judge provide information to the Office of the State's Attorney in the preparation of the retrial of a case which the judge tried while the judge served as an assistant State's Attorney?

OPINION

A judge may provide information to the new State's Attorney assigned to try the case.

Illinois Supreme Court Rule 65F is the only rule that is really on point and it merely states: "A judge should not practice law." Simple enough, but nowhere is there a definition of exactly what constitutes the "practice of law", "Becoming a judge: Problems with leaving a law practice", Judicial Conduct Reporter, Volume 6, Number 3, Fall 1984 and Volume 6, Number 4, Winter 1985.

Illinois Supreme Court Rule 64B, in pertinent part, states: "a judge...may otherwise consult with an executive...on matters concerning the administration of justice." Given the circumstances presented, cooperation, in the interest of the proper administration of justice, should not be discouraged. A judge has a duty to his former client, in this case the State, just as he or should would to any other client, to provide information to the new lawyer regarding the case. The judge, however, must be careful not to give current advice to the new attorney as he or she would then be violating Illinois Supreme Court Rule 65F, which precludes a judge from practicing law. Providing information is not the same as providing advice on matters such as trial strategy.

Illinois Supreme Court Rule 63A(4), regarding ex parte communications, is limited to situations in which the judge is assigned to try the case. That is not involved with this inquiry. For the same reason, Illinois Supreme Court Rule 63C(1)(b) concerning a judge who previously served as a lawyer in the matter in controversy is not involved in this fact situation.

Reference may also be made to Judicial Advisory Florida Opinion 75-22 in which a judge as a judicial officer may give information about an attorney if requested to do so by a proper authority. In that case, the judge was called to give information for the purpose of sentencing an attorney in a contempt matter. Some cases in this area may involve activity that might involve Illinois Supreme Court Rule 62B which provides that a judge "should not lend the prestige of his office to advance the private interests of others..." but that is not involved here.