Opinion No. 95-20

October 12, 1995

TOPIC: Duty of judge, who was formerly in the public defender's office, to disqualify from cases where that office now represents a defendant.

DIGEST: A new judge who had been an assistant public defender before becoming a judge is not disqualified from hearing a case in which that office represents a defendant so long as the judge never represented the defendant in the matter now before the judge.

REFERENCES: Illinois Supreme Court Rule 63C(1)(b) and (c) 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; People v. Austin, 116 Ill. App. 3d 95, 451 N.E.2d 593 (2d Dist. 1983); People v. Storms, 155 Ill.2d 498, 617 N.E.2d 1188 (1993); People v. Robinson, 79 Ill.2d 147, 402 N.E.2d 157 (1980); Illinois Judicial Ethics Committee Opinion No. 95-15.

FACTS

A new judge who was an assistant public defender prior to coming on the bench is about to be assigned to hear a combined misdemeanor and preliminary hearing call. The judge questions whether it is proper to hear a call where public defenders represent many of the defendants.

QUESTION

Is the new judge, who was formerly an assistant public defender, disqualified from hearing cases where that office now represents a defendant?

OPINION

A new judge who has previously been an assistant public defender is not disqualified from hearing cases where the public defender's office represents defendants, so long as the new judge did not act as counsel for the individual defendants in the matters now before the judge.

This situation is governed by Supreme Court Rule 63C(1)(b) and (c), which states in pertinent part:

C. Disqualification.

(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:

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(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...

(c) the judge was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy...

Under Rule 63C(1)(b), a judge who was previously a public defender clearly would be disqualified from hearing cases in which he or she personally participated at any stage. In People v. Austin, 116 Ill. App. 3d 95, 451 N.E.2d 593 (2d Dist. 1983), the trial judge, while a public defender, had represented the defendant at the preliminary hearing on the charges which formed the basis for the probation revocation hearing. The Court ruled that because the trial judge had "acted as counsel" for the defendant, however briefly, the judge should have recused himself from hearing further proceedings.

On the other hand, a judge who was previously an assistant public defender is not disqualified simply because the public defender's office represents a defendant in a matter before the judge. Rule 63C(1)(b) is inapplicable to a case in which the public defender's office did not represent the defendant while the judge was a member of that office because that rule is limited to prior representations "in the matter in controversy." Our Supreme Court has explained that, "[ilnterpreted by its plain meaning, the phrase 'matter in controversy' has been held to encompass the case currently pending before the court." People v. Storms, 155 Ill. 2d 498, 504, 617 N.E.2d 1188 (1993).

Moreover, Rule 63C(1)(c) does not require disqualification even if the public defender's office represented the defendant in another matter in the past three years, because the vicarious disqualification required by that rule is expressly limited to lawyers who were in the "private practice of law." See Illinois Judicial Ethics Committee Opinion No. 95-15.

A more difficult question is whether the judge would be disqualified if, during the judge's employment as an assistant public defender, other members of the public defender's office represented a defendant in the proceeding that is now before the judge. Rule 63C(1)(b) requires the disqualification of a judge if, inter alia "a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter [in controversy]..."

This Committee has recently concluded that the disqualification requirements of Rule 63C(1)(b) do not extend to lawyers who were associated in the practice of law at a governmental agency. See Illinois Judicial Ethics Committee Opinion No. 95-15. For the reasons explained below, the Committee reaffirms that conclusion.

Although this precise issue has not been addressed in the context of judicial disqualification, in People v. Robinson, 79 Ill. 2d 147, 402 N.E.2d 157 (1980), the Supreme Court considered whether the public defender's office is a single entity for purposes of conflict of interest resulting in ineffective assistance of counsel. In that case, a defendant in Will County was initially represented by an assistant public defender whose private law firm had previously represented the victim in a civil matter and was still owed fees by the victim. The defendant was assigned another assistant public defender. On appeal, the defendant alleged that the conflict with the initial assistant public defender extended to all members of the public defender's office. After analyzing decisions from other jurisdictions and acknowledging the differences between public defender offices in large metropolitan areas and in small rural areas, the Supreme Court stated:

Upon review of the authorities and consideration of the diversity of organization of the offices of the public defenders, we conclude that the avoidance of conflicts of interest which result in failure to provide effective assistance of counsel does not require us to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation.

Id. 79 Ill. 2d at 158 - 1591

The inapplicability of vicarious disqualification to members of the public defender's office, for purposes of the conflict of interest rules applicable to lawyers, suggests that vicarious disqualification is also inapplicable under the Code of Judicial Conduct to members of that office who later become judges. This conclusion is supported by the Commentary to the provision in the American Bar Association Model Code of Judicial Conduct which is identical to Supreme Court Rule 63C(1)(b). That provision states as follows:

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.

Commentary to ABA Model Code of Judicial Conduct (1990), Canon 3, Section 3E(1)(b). Because the public defender's office is a governmental agency, the vicarious disqualification requirements of Rule 63C(1)(b) are inapplicable to former members of that office.

CONCLUSION

A judge who was formerly an assistant public defender may hear cases in which a defendant is represented by the public defender's office, so long as the judge had no previous involvement with the pending case.