Opinion 97-04

March 5, 1997

TOPIC: Judge previously represented one of lawyers who now appears before him or her in case.

DIGEST: Judge is not disqualified merely because the judge previously represented one of the lawyers now appearing in case before him or her, as long as the judge has no personal bias or prejudice for or against the former client.

REFERENCE: Illinois Supreme Court Rule 63C(1), 63C(1)(a), (b) and (c) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Judicial Ethics Opinion Nos. 93-10, 95-2, 96-20 and 96-22.

FACTS

A newly appointed judge believes it is likely that he or she will be assigned to a court in which a lawyer he or she formerly represented will appear before him or her. Approximately nine months ago, the judge represented this attorney when the attorney was subpoenaed as a witness in a grand jury proceeding. The judge had known the attorney for years, but this was the only time the judge represented this attorney. The judge conferred with the attorney for about an hour and spent about another hour with the attorney at the grand jury proceeding. The attorney paid the judge's fee and the attorney-client relationship ceased.

QUESTION

Is the judge disqualified from hearing cases in which his or her former client will appear before him or her as an attorney for a party?

OPINION

No. Rule 63C(1), (a), (b) and (c) read as follows:

63C. 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:

(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of

disputed evidentiary facts concerning the proceeding;

(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, or the judge has been

a material witness concerning it;

associated in the private practice of law with any law

firm or lawyer currently representing any party in the

controversy (provided that referral of cases when no

monetary interest was retained shall not be deemed an

association within the meaning of this subparagraph) or,

for a period of seven years following the last date on

which the judge represented any party to the controversy

while the judge was an attorney engaged in the private

practice of law.

The prohibition of 63C(1) applies to any circumstance where "the judge's impartiality might reasonably be questioned..." What's "reasonable" should be interpreted in light of circumstances of the next three subparagraphs.

(a) does not seem to apply because the facts do not mention any personal bias or prejudice.

(b) is concerned with circumstances where the case now before the court was one where the judge or a former partner had something to do with that same case while he or she was a lawyer. (b) completely disqualifies a judge if he or she had previously served as an attorney in the matter that is now before the court and that is not the situation here. Further (b) disqualifies a judge if it was a former partner who represented any party while they were partners in regard to the matter now before the court. That is not the situation now.

(c) analyzes circumstances where the cases are not the same but where either the judge or a former partner represented a party that is now before the court. (c) disqualifies a judge for three years if it were a former partner that represented

the party now in court. If it were the judge who represented the party, albeit, in a different matter, then the disqualification is for seven years.

Neither of these situations is posed in the question presented. It is not the party that had a connection with the judge but the attorney for the party and thus (c) does not disqualify this judge.

IJEC 95-2 poses the flip side of this inquiry: Disqualification of a judge when a litigant is represented by a lawyer who currently or formerly represented the judge. In 95-2 the committee took the position that the relationship of the lawyer having formerly represented the judge could reasonably cause the judge's impartiality to be questioned and, therefore, the judge was disqualified. However, the length of the disqualification was indefinite -- not more than three years.

Further, 95-2 suggests that the disqualification might be less than three years depending on the gravity and length of the lawyer's representation. The opinion then suggests that the judge disclose the disqualification and the lawyers may then proceed with the process for a remittal of disqualification under Rule 63D or just allow the case to be transferred to another judge.

That solution does not fit as well with this question. The dynamics of a prior relationship of a judge acting as a lawyer for the lawyer of the party is much different than the relationship of a lawyer of a party having represented the judge. When analyzed, it is not very likely that a judge should be presumed biased in favor or against a party now before the court because the party's attorney had been represented by the judge when he was a practicing lawyer.

IJEC Opinion 93-10 involves the circumstance where a lawyer for a party was a former partner of the judge. The disqualification in that instance under Rule 63C(1)(c) is for three years. It would appear that any presumption of bias for a former partner would be much greater than for a former client who is now representing a party before the court.

IJEC Opinion 96-20 involves a lawyer for a party before the court who is the judge's former campaign manager and holds that there is no presumed bias. This relationship seems to be much stronger than the relationship between a lawyer and a former client.

Finally, IJEC Opinion 96-22 involves a lawyer for a party before the court who had been the lawyer for the judge's ex spouse in the judge's divorce proceedings and held that this did not raise a presumed bias. This situation seems much stronger than any possible bias by a judge toward a party whose lawyer had been a client of the judge.

Thus, no bias or disqualification should be presumed just because a party before the court is represented by a lawyer the judge formerly represented. Absent any personal bias or prejudice, a judge is not disqualified simply because the judge previously represented the lawyer for one of the parties before the court.

Although a judge is not required to disclose the fact of his or her previous representation of a lawyer for a party before the court, disclosure may be appropriate under some circumstances. However, in considering whether to make such disclosure, the judge should take care not to disclose information covered by the lawyer's obligation of confidentiality or the attorney-client privilege.

1The Committee expresses no opinion regarding whether, or to what extent, a judge can accept a referral fee if the fee-sharing arrangement contemplated that the referring lawyer would provide legal services. Nor does the Committee address the propriety of a fee-sharing arrangement if the referral was made in anticipation of the referring lawyer becoming a judge.

1The Terminology Section of the Illinois Code of Judicial Conduct defines "third degree of relationship" as follows:

The following persons are relatives within the third degree of relationship: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece.

2The Committee believes that disqualification is not required unless the specific provisions of Illinois Supreme Court Rule 63C(1)(e) are applicable. At least where, as here, the potential ground for disqualification (i.e., a judge being related to a lawyer) is addressed in a specific subparagraph to Illinois Supreme Court 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. Cf. Illinois Judicial Ethics Committee ("IJEC") Opinion No. 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).

3This conclusion comports with the Committee's determination, in IJEC Opinion No. 93-10, that there is no reason for a judge to disclose that he or she was a partner nine years ago in a law firm that represents one of the parties. Given that Illinois Supreme Court Rule 63C(1)(c) requires disqualification if a judge was associated with a law firm representing a party within the past three years, in the absence of any other information raising questions about the judge's impartiality, the fact that the judge was associated with such a law firm nine years ago is not relevant to a reasonable argument that disqualification is required.

1On two occasions, the Illinois Supreme Court has disciplined lawyers who were convicted of possession of cocaine. In re Scarnavack, 108 Ill.2d 456, 485 N.E.2d 1 (1985); In re Lunardi, 127 Ill.2d 413, 537 N.E.2d 767 (1989). In neither case did the Court address Rule 8.4 of its predecessor in the former Illinois Code of Professional Responsibility, DR 1-102(A)(3). Instead, the Court appeared to rely upon Supreme Court Rule 771, which authorizes discipline for conduct of attorneys "which tends to defeat the administration of justice or to bring...the legal system into disrepute..."

2A more difficult question is whether the judge must initiate ARDC proceedings by personally reporting the lawyer to that agency, as opposed to ordering respondent's counsel to do so. With respect to the present inquiry, the custody proceeding is no longer pending before the court. Even if judges could sometimes discharge their obligation under Rule 63B(3) by ordering counsel to report a lawyer's misconduct to the ARDC (an issue that the Committee need not decide at this time), the Committee believes that it would be inappropriate to attempt to do so long after the completion of the proceedings in question.

3The use of the term "appropriate disciplinary measures" in Rule 63B(3) implies that judges ordinarily possess discretion to select what disciplinary measures to take or initiate. The Committee is troubled that judges could potentially be disciplined for their good faith exercise of that discretion in a manner that is ultimately determined to be erroneous. To reduce that risk, the Committee recommends that Supreme Court Rule 63B(3) be revised to state expressly the kinds of circumstances that mandate reporting lawyers to the ARDC.

4Cf. Himmel, supra, where failure to report the misconduct of a lawyer who misappropriated a client's funds permitted the lawyer to victimize other clients.

1Although disqualification has been a frequent subject of the Committee's opinions, this inquiry raises issues of first impression for the Committee. The prior opinion that comes closest to addressing the issues now before the Committee is Illinois Judicial Ethics Committee ("IJEC") Opinion No. 95-6, where the Committee opined that disqualification was not required where, before the judge went on the bench, the judge was partners with a lawyer who represented, in an unrelated matter, a party to the case now pending before the judge. See also IJEC Opinion No. 93-1 (improper ex parte communication does not require disqualification); IJEC Opinion No. 93-10 (disqualification is not required where judge's former partner represents a party but judge left firm nine years ago and partner did not then represent the party regarding that matter); IJEC Opinion No. 93-11 (disqualification is not required when party or lawyer was contributor to judge's campaign); IJEC Opinion No. 94-18 (disqualification may be required if judge's nephew is associated with law firm representing party); IJEC Opinion No. 95-2 (disqualification is required when lawyer represents judge in matrimonial case); IJEC Opinion No. 95-5 (disqualification is not required when a party files suit against judge or lodges complaint with Judicial Inquiry Board); IJEC Opinion No. 95-9 (disqualification from criminal matters is not required where judge's spouse is secretary for State's Attorney).

1 Because Robinson involved public defenders, that decision forecloses any argument that there is a qualitative difference, for purposes of vicarious disqualification, between a judge who was formerly a member of the state's attorney's office that prosecuted the defendant, and a judge who was a member of the public defender's office that represented, and received confidential information from the defendant. Moreover, Rule 63C(1)(b), which requires disqualification when "a lawyer with whom the judge practiced law served during such association as a lawyer concerning the matter," does not contain any language justifying a distinction between members of the state's attorney's and public defender's offices. See also Commentary to ABA Model Code of Judicial Conduct (1990), Canon 3, Section 3E(1)(b), discussed below.

1Under the 1870 Illinois Constitution, the Supreme Court lacked jurisdiction to impose judicial discipline. Holland, supra, 337 Ill. at 348.

2The Supreme Court has also permitted other "penalties" to ensue from assertion of the Fifth Amendment. For example, it is permissible to draw adverse inferences in a civil proceeding from a witness' refusal to testify. Baxter v. Palmigiano, 425 U.S. 308, 317-18 (1975).

3The Committee expresses no opinion regarding whether judges can be disciplined for invoking the Fifth Amendment in response to questions that do not concern their performance of official duties.

1The Committee expresses no opinion on the scope of immunity statutes in states other than Illinois.

2An individual may be disciplined as an attorney for acts of "immorality, dishonesty, fraud or crime" committed while serving as a judge. In re Witt, 145 Ill.2d 380, 394, 583 N.E.2d 526 (1991). See also In re McGarry, 380 Ill. 359, 369, 44 N.E.2d 7 (1942) (judges may be disciplined "in their profession for any conduct exhibiting turpitude or the loss of that good character which was essential to admission and which must be deemed equally essential to continuance at the bar").

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