Opinion No. 95-15

September 13, 1995

TOPIC: Disqualification when judge's former partner was, during the partnership, the defendant's court-appointed attorney in the case now before the judge.

DIGEST: A judge must disqualify himself or herself from a case if the judge was a partner in private practice with a lawyer who, during that partnership, served as court-appointed counsel for the defendant in the same matter now before the judge.

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)(c) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Illinois Supreme Court Rule 63D of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Committee Comments to Illinois Supreme Court Rule 63 of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Section 3E(1)(b) of the Model Code of Judicial Conduct (1990) & Related Commentary; Comment to ABA Model Rule of Professional Conduct 1.10; Illinois Judicial Ethics Committee Opinion Nos. 93-1, 93-10, 93-11, 94-18, 95-2, 95-5, 95-6, and 95-9.

FACTS

Before becoming a judge approximately two years ago, Lawyer A was a partner in a law firm with Lawyer B. During the course of that relationship, Lawyer B was appointed to represent a defendant in a capital case which was later reversed on appeal and is now back in the trial court. Lawyer A took no part in the trial or appeal of that case. Lawyer A is now the judge to whom the case has been assigned, and Lawyer B is the full-time Public Defender for the circuit.

QUESTIONS

1. Can the judge preside over the defendant's new trial?

2. Is the answer to the first question affected by whether or not Lawyer B participates in the new trial?

OPINIONS

Question 1

The judge must disqualify himself or herself pursuant to Supreme Court Rule 63C(1)(b), which provides in pertinent part:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

* * *

(b) 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... (Emphasis added)

At first blush, it may appear self-evident that the judge must be disqualified because the judge and Lawyer B were partners when Lawyer B was representing the defendant in that proceeding. However, as explained below, Rule 63C(1)(b) is ordinarily limited to lawyers who are associated in private practice. This makes it necessary to decide whether lawyers who have been appointed to represent criminal defendants are considered to be in private practice for purposes of the rule.1

Supreme Court Rule 63C(1)(c) requires disqualification with respect to certain representations undertaken by the judge or the judge's law firm when the judge was "in the private practice of law." On the other hand, Supreme Court Rule 63C(1)(b) requires disqualification with respect to certain representations by a judge "or a lawyer with whom he previously practiced law..." Under standard rules of construction, the use of the phrase "private practice of law" in Rule 63C(1)(c) may suggest that the absence of that phrase from Rule 63C(1)(b) was intended to mean that the latter rule is not limited to lawyers who are associated in private practice.

The Committee does not believe that Rule 63C(1)(b) was so intended. That rule was borrowed verbatim from Section 3E(1)(b) of the Model Code of Judicial Conduct (1990). The Commentary to that section states:

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Section 3E(1)(b); a judge formerly employed by a government agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association. (Emphasis added)

Unlike Rule 63C(1)(b), Supreme Court Rule 63C(1)(c) was not borrowed from the Model Code. See Committee Comments to Supreme Court Rule 63. This Committee does not believe that the addition of Rule 63C(1)(c) to the Illinois Code of Judicial Conduct was intended to change the meaning of Rule 63C(1)(b) from that which it possesses under the Model Code. Thus, lawyers who practice in the same government agency are not ordinarily "associated" for purposes of Rule 63C(1)(b).

The Committee believes that a lawyer in private practice who has been appointed to represent a criminal defendant does have an "association" with others in the lawyer's firm for purposes of Supreme Court Rule 63C(1)(b). Such a lawyer, unlike those whom the Commentary to the Model Rule states are excluded from the scope of the rule, is not "in a government agency..." Moreover, other considerations that may underlie the distinction in Rule 63C(1)(b) between lawyers in private practice and those in government agencies -- e.g., the belief that there may be a greater risk of disclosure of client confidences in a law firm setting than in a government agency, and that extensive disqualification of government lawyers would be unduly burdensome and could interfere with the government's recruiting activities (cf. Comment to ABA Model Rule of Professional Conduct 1.10) -- do not justify treating appointed counsel the same as full-time government lawyers.

Accordingly, the Committee concludes that the judge and Lawyer B were associated, for purposes of Supreme Court Rule 63C(1)(b), when Lawyer B was representing the defendant as court-appointed counsel in the case now pending before the judge. The judge therefore cannot participate in that proceeding unless there is a remittal of disqualification pursuant to Supreme Court Rule 63D.

Question 2

Rule 63C(1)(b) prevents the judge from participating regardless of whether or not Lawyer B continues to represent the defendant. That rule disqualifies judges who were associated in private practice with lawyers who "served during such association as a lawyer concerning the matter." Disqualification is not contingent upon the former colleague continuing to serve as counsel concerning the matter.

CONCLUSION

Absent a remittal of disqualification in accordance with Supreme Court Rule 63D, the judge must disqualify himself or herself from participating in the proceeding.