Opinion No. 01-02

May 1, 2001

Topic: Disqualification from hearing cases in which the law firm of the judge's spouse is entitled to a referral fee.

Digest: The judge is disqualified from hearing cases in which the law firm of the judge's spouse is entitled to a referral fee if the spouse's interest in the case is more than de minimus.

References: Illinois Supreme Court Rule 63C(1)(e)(iii); Illinois Judicial Ethics Committee Opinion No. 94-18.

FACTS

The law firm of the judge's spouse receives referral fees on cases that firm refers to other firms.

QUESTION

Is the judge disqualified from hearing cases in which the law firm of the judge's spouse would be entitled to a referral fee?

OPINION

The judge is disqualified from hearing cases in which the law firm of the judge's spouse is entitled to a referral fee if the spouse's interest in the case is more than de minimus. Supreme Court Rule 63C(1)(e)(iii) requires disqualification if a judge's spouse "has any more than de minimus interest that could be substantially affected by the proceeding…"

The IJEC considered the de minimus rule in its Opinion No. 94-18. The Committee offered the following guidance concerning the requisite case-by-case application of that rule:

The Committee believes that judges should consider the following three factors when determining whether a relative has more than a de minimus interest that could be affected by a proceeding:

1. The nature of the case, in particular its financial or other impact on the relative's law firm;

2. The relative's position in the firm as partner, shareholder, associate or of counsel; and

3. The size of the firm.

Obviously, if the relative is a partner in a two-person law firm, and the case could generate substantial attorneys' fees, the relative's interest is more than de minimus. On the other hand, if the relative is a beginning associate in a 200-person law firm, and the case involves a fee of only a few thousand dollars, the relative's interest is de minimus. In most cases, the facts will fall somewhere between these extremes and the judge will be required to make a reasoned assessment of the extent of the relative's interest.