Opinion No. 96-20

September 16, 1996

TOPIC: Disqualification of judge if a party is represented by the judge's campaign chairman or another lawyer from the campaign chairman's law firm.

DIGEST: A judge is disqualified from hearing any matters during the course of an election campaign in which one of the parties is represented by the judge's campaign chairman. That disqualification does not extend to cases in which other lawyers with the campaign chairman's firm are involved. Although the judge's disclosure of the presence of his or her campaign chairman in the law firm representing one of the parties is not required, such disclosure is advisable, even in cases in which another party is appearing pro se.

REFERENCES: Illinois Supreme Court Rules of the Code of Judicial Conduct, Rules 63C(1), 63C(1)(a), 63C(1)(c), 63C(1)(e)(ii), Canon 3 (145 Ill.2d R. 63); Rule 1.10(a) of the Illinois Rules of Professional Conduct; Gluth Brothers Construction, Inc. v. Union National Bank, 192 Ill.App.3d 649, 548 N.E.2d 1364 (2d Dist. 1989), appeal denied, 131 Ill.2d 559 (1990); People v. McClain, 226 Ill.App.3d 892, 589 N.E.2d 1116 (2d Dist. 1992); Caleffe v. Vitale, 488 So.2d 627 (Fla. Dist. Ct. App. 1986); Illinois Judicial Ethics Committee Opinion Nos. 93-11, 94-18 and 95-2; and ISBA Opinion No. 866 (1984).

FACTS

An associate judge is running for election to the circuit court. Lawyer A is the chairman of the committee to elect the judge.

QUESTIONS

1. Is the judge disqualified from hearing matters in which Lawyer A represents one of the parties?

2. Is the judge disqualified from hearing matters in which another lawyer from Lawyer A's firm represents one of the parties?

3. If the judge is not disqualified in either of the foregoing situations, should the judge disclose the nature of his or her relationship with Lawyer A?

4. Is the advisability of disclosing the judge's relationship with Lawyer A any different in cases that involve pro se parties?

OPINIONS

Question 1

None of the specific grounds for disqualification contained in Supreme Court Rule 63C(1) address relationships between a judge and persons involved in the judge's election campaign. Consequently, this inquiry is governed by the catchall language in Supreme Court Rule 63C(1), which requires disqualification if "a judge's impartiality might reasonably be questioned." See Illinois Judicial Ethics Committee ("IJEC") Opinion No. 95-2 ("[if] 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").

Apparently no Illinois decisions discuss whether a judge is disqualified from hearing a matter, during the course of the judge's election campaign, in which the judge's campaign chairman represents one of the parties. Two reported cases indicate that a judge can hear cases involving his or her campaign chairman after the election. In Gluth Brothers Construction, Inc. v. Union National Bank, 192 Ill.App.3d 649, 548 N.E.2d 1364 (2d Dist. 1989), appeal denied, 131 Ill.2d 559 (1990), the appellate court held that the trial judge was not disqualified from presiding over a trial in which one of the lawyers had been the judge's campaign chairman six years earlier. The court stressed that the campaign had taken place long before the lawsuit in question was filed, but it also mentioned that the documents which revealed the lawyer's role in the campaign were matters of public record. See also People v. McClain, 226 Ill.App.3d 892, 589 N.E.2d 1116 (2d Dist. 1992) (judge was not disqualified from presiding over criminal trial even though State's Attorney had chaired the judge's election campaign); IJEC Opinion No. 93-11 (judge is not disqualified from presiding over cases in which a lawyer or a party contributed to the judge's successful election campaign); ISBA Opinion No. 866 (1984) (lawyer who contributed to or participated in a judge's election campaign is not precluded from appearing before that judge in subsequent judicial proceedings).

The Committee believes that Gluth Brothers and McClain are inapposite because they did not involve ongoing campaigns. On the other hand, Caleffe v. Vitale, 488 So.2d 627 (Fla. Dist. Ct. App. 1986), involved the precise situation involved in this inquiry. There, the Florida District Court of Appeal held that a judge was disqualified from presiding over a matter in which one of the parties was represented by the judge's campaign chairman. The Committee agrees with the Caleffe court that a judge's impartiality might reasonably be questioned if one of the parties is represented by the judge's campaign chairman. Consequently, a judge should not hear any matters during the course of the election campaign involving his or her campaign chairman.

Question 2

Does the answer change if the campaign chairman is not personally involved in the matter before the judge, but one of the parties is represented by another lawyer from the campaign chairman's firm? Once again, this question turns on whether, under Supreme Court Rule 63C(1), one can reasonably question the judge's impartiality to decide such a matter.

This appears to be an issue of first impression. On balance, the Committee believes that disqualification of the judge under those circumstances would be an unwarranted application of principles of vicarious disqualification to the Code of Judicial Conduct.

Unlike the provisions governing disqualification of lawyers contained in Rule 1.10(a) of the Illinois Rules of Professional Conduct, which provide that an entire law firm is generally disqualified if any of the lawyers in that firm have a conflict of interest that prevents them from accepting a representation, the Illinois Code of Judicial Conduct does not have a comparable rule of vicarious disqualification preventing a judge from presiding over a matter involving a particular law firm if that judge would be prevented from presiding over a matter involving any of the lawyers in that firm. For example, a judge is not necessarily disqualified under Rule 63C(1)(a) from hearing matters involving a law firm if that judge has a personal bias involving a lawyer in that firm who is not involved in the case. Similarly, disqualification under Rule 63C(1)(e)(ii), due to a judge's family relationship to a lawyer, does not automatically extend to all matters involving the lawyer's firm. IJEC Opinion No. 94-18. But see Supreme Court Rule 63C(1)(c) (disqualification due to judge's association in private practice of law with any law firm representing a party).

Given the general inapplicability of vicarious disqualification principles to judges, and in the absence of any authorities holding that such disqualification is required under these facts, the Committee concludes that, without any additional reason (such as the size of the law firm, the nature of the judge's relationship with the lawyer appearing in the case, etc.) to question the judge's impartiality, the mere fact that one of the parties is represented by a lawyer from the judge's campaign chairman's firm does not require disqualification.

Question 3

Although the Committee believes that disqualification is not required in every matter involving the law firm in which the judge's campaign chairman practices, the Committee recommends that the judge disclose this situation on the record. The rationale for such disclosure was explained in IJEC Opinion No. 94-18:

"Although the Illinois Code does not contain a recommendation, let alone a requirement, that judges disclose information regarding disqualification, the Committee nevertheless believes that such disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. In the long run, disclosure of that information will promote public confidence in the judiciary by eliminating the possibility that a party or its lawyers may later discover that information and conclude that the judge had improperly failed to disqualify himself or herself. Although the parties and their lawyers may disagree with the judge's determination that disqualification is unnecessary, disclosure avoids any suggestion that the judge concealed important information regarding disqualification and enables the parties to preserve the disqualification issue for appellate review." (Emphasis added; footnote omitted.)

The Committee believes that information regarding the presence of the judge's campaign chairman in the law firm representing one of the parties is relevant to a reasonable (but not meritorious) argument that disqualification is required. Although disclosure of that information is therefore advisable, such disclosure is purely voluntary and a judge would not violate the Code of Judicial Conduct by failing to disclose that information.

Question 4

As noted above, judges have unfettered discretion to decide whether to make any disclosure regarding facts which do not require disqualification, and they cannot ever be disciplined for failing to make such a disclosure. Because the primary objective of disclosure is to promote confidence in the impartiality of the judge, any concerns that such disclosure, in the context of a particular case, would be counterproductive to that objective can legitimately be considered by the judge in deciding whether or not to disclose.

Nevertheless, the Committee does not believe that the presence of pro se parties affects the advisability of disclosing that the judge's campaign chairman practices law with the firm that represents another party. Although some pro se litigants might misconstrue that disclosure as implying that this situation should be a source of concern, the Committee believes that this information can be conveyed in a way that is more likely to promote, rather than undermine, litigants' confidence in the impartiality and integrity of the Court.

Specifically, a judge might state that it is his or her practice to disclose, in any cases involving the law firm in question, that the judge's campaign chairman practices law with that firm. The judge could state that this information is being provided in the interest of full disclosure, but that this situation has no bearing whatsoever on the judge's impartiality. The judge might observe that our justice system is concerned with appearances, and that he or she chooses to disclose this information to avoid any misperception, absent disclosure, that it was being concealed from the parties. Finally, the judge could invite the parties and lawyer to ask any questions they might have about this situation.

CONCLUSION

A judge is disqualified from hearing any matters during the course of an election campaign in which one of the parties is represented by the judge's campaign chairman. That disqualification does not extend to cases in which other lawyers with the campaign chairman's firm are involved. Although not required, the judge's disclosure that his or her campaign chairman practices with a law firm representing one of the parties is advisable, even in cases in which another party is appearing pro se.