Opinion No. 95-6

April 18, 1995

TOPIC: Duty to disqualify when party is found to be former client of judge's former law partner.

DIGEST: Judge is not required to disqualify when it is discovered that a party had been represented by a former law partner of the judge in an unrelated case.

REFERENCES: Illinois Supreme Court Rules 63C(1) and C(1)(c) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63).

FACTS

Judge, who had been on the bench for approximately one year, was presiding over a quasi-criminal case. The defendant's lawyer moved to disqualify judge on the ground that the judge's former partner had once represented the defendant in an unrelated matter. The case in which the judge's former partner acted as counsel was concluded before the instant case was filed; the former partner is not in any way involved in the current case. A letter concerning the earlier case was attached to the motion to disqualify; it showed judge's name on the partnership letterhead.

QUESTION

Must judge disqualify when a party is a former client of judge's former law partner?

OPINION

Illinois Supreme Court Rule 63C(1)(c) requires that a judge disqualify "for a period of seven years after the judge represented any party to the controversy while the judge was an attorney engaged in the private practice of law." It is clear that the judge's partner represented the defendant during the period "while the judge was engaged in the private practice of law." But is that representation also imputed to the judge? In other words, does Rule 63C(1)(c) apply only to clients whom the judge represented personally, or does it apply to every client of the judge's former firm?

Unfortunately, Rule 63C(1)(c) does not define the term "represented". In some contexts representation is regarded as personal and in others it is understood as applying to the clients of one's partners. Due to the ambiguity of the Rule, it is impossible to determine from the text which interpretation was intended.

The Committee believes that the better approach is to apply Rule 63C(1)(c) only to clients whom the judge once represented personally. The alternative would require disqualification for seven years from cases involving every client of a judge's former law firm (at least where the judge had been a partner). If the judge had been a member of a large law firm, the result would be mandatory disqualification concerning literally hundreds of clients, most of whom would have had absolutely no contact with the judge.

Accordingly, it is the opinion of the Committee that Rule 63C(1)(c) does not require the disqualification of a judge merely because the judge's former law partner once represented a party to the instant proceeding. We note, however, that Rule 63C(1) might nonetheless require the disqualification of the judge if additional facts suggested that the judge's "impartiality might reasonably be questioned." As no such facts are presented by the instant inquiry, the Committee does not reach that issue.