Opinion No. 95-2

March 7, 1995

TOPIC: Disqualification of a judge when a litigant is represented by a lawyer who currently represents or formerly represented the judge.

DIGEST: The appearance before a judge of a lawyer who represents the judge involves a situation where the judge's impartiality might reasonably be questioned. Consequently, the judge is disqualified from hearing any matters involving the lawyer unless, following the judge's disclosure of his or her relationship with the lawyer, the parties agree in writing to waive the disqualification pursuant to Illinois Supreme Court Rule 63D.

REFERENCES: Illinois Supreme Court Rules 63C(1), 63C(1)(c) and 63D of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Judicial Ethics Committee Opinion Nos. 93-10 and 94-18.

FACTS

A lawyer appears before a judge who has retained the lawyer in a matrimonial case.

QUESTIONS

1. Is the judge disqualified from hearing any cases in which a party is represented by the lawyer?

2. If so, for how long is the judge disqualified?

3. Can any such disqualification be waived?

OPINIONS

1

None of the specific grounds for disqualification are set forth in subparagraphs (a) through (e) of Illinois Supreme Court Rule 63C(1) involving a judge's representation by a lawyer appearing before the judge. Consequently, the judge's duty to disqualify himself or herself depends upon whether, under Rule 63C(1), "the judge's impartiality might reasonably be questioned" under these circumstances.

These facts present the converse of those that were addressed in Illinois Judicial Ethics Committee ("IJEC") Opinion 94-18. There, the potential ground for disqualification was specifically addressed in Illinois Supreme Court Rule 63C(1)(e). The Committee concluded that, where "the potential ground for disqualification...is addressed in a specific subparagraph to...Rule 63C(1) and there are no other reasons to question the judge's impartiality, the general language of the introduction to that Rule, requiring disqualification under circumstances 'where the judge's impartiality may reasonably be questioned,' does not mandate disqualification". Id. at 3-4 n.2. See also IJEC Opinion 93-10 (judge who had been partner nine years ago in law firm representing a party is not disqualified because Illinois Supreme Court Rule 63C(1)(c) limits disqualification on that ground to three-year period).

In the present inquiry, since the potential ground for disqualification is not covered by any of the subparagraphs to Rule 63C(1), the general language of the introduction to that Rule is controlling. The Committee believes that the impartiality of the judge in question could reasonably be questioned in light of the judge's representation by the lawyer. Consequently, the judge is disqualified from hearing any matters in which the judge's lawyer is counsel of record.

2

How long would the disqualification remain once the lawyer stopped representing the judge? Supreme Court Rule 63C(1) does not expressly prescribe the length of any disqualification, such as this, prompted by a situation "where the judge's impartiality may reasonably be questioned."

The Committee notes, however, that Illinois Supreme Court Rule 63C(1)(c) imposes a three-year bar where the judge was associated in the private practice of law with any law firm or lawyer currently representing a party in controversy and a seven-year bar where a judge previously represented a litigant. The Committee further notes that Rule 63C(1)(d), discussing economic interests, includes a de minimis standard (de minimis is defined in the terminology section of the rules as "an insignificant interest that could not raise reasonable question as to a judge's impartiality.")

It might be easy to select the three-year or seven-year standard and argue that such a period would serve as a "safe harbor" for any judge who has previously been in a lawyer-client relationship with a lawyer representing a litigant, but to do so would be a disservice. One can analogize different types of representation to these differing standards. For example, representation of the judge on a ticket for exceeding the speed limit or at a closing on the purchase of a home may well be de minimis such that that lawyer could appear from the judge immediately following termination of the representation. In contrast, the lawyer representing the judge in the judge's dissolution of marriage involves a more extensive lawyer-client relationship where the three-year standard might be appropriate. The Committee could identify no specific examples which the fact that a lawyer represented a judge might justify disqualification for seven years as any possible question as to the judge's impartiality relates under that provision to the litigant and not to the lawyer representing the litigant. To do so may make it unreasonably difficult for a judge to obtain legal representation.

3

How should a judge proceed when a lawyer who represents the judge appears before the judge? The judge should announce that he or she is disqualified and explain the basis for disqualification. If the judge is confident that the relationship with the lawyer would not affect his or her ability to be impartial, the judge could offer the parties and lawyers the opportunity to waive the disqualification. Under Illinois Supreme Court Rule 63D, the judge would not be disqualified if the judge discloses on the record the basis of the disqualification and "the parties and lawyers, independently of the judge's participation, all agree in writing that the judge's relationship or interest is immaterial...." Id. The judge should afford the parties and lawyers sufficient time, out of the presence of the judge, to decide whether to waive the disqualification. If they choose to do so, a written agreement remitting the judge's disqualification must be signed by all of the parties and lawyers and incorporated in the record of the proceeding. Id.