Opinion No. 00-2

April 18, 2000

Topic: Duty to disqualify when the uncle or cousin of the judge's spouse appears before the judge.

Digest: Disqualification is required where: (1) the uncle of the judge's spouse is acting as a lawyer in the proceeding; or (2) the cousin of the judge's spouse is acting as an attorney in the proceeding and the judge's impartiality may reasonably be questioned or the uncle, as the cousin's partner, has more than a de minimis interest in the proceeding that could be substantially affected by the outcome of the proceeding.

References: Illinois Supreme Court Rules 63C(1), 63C(1)(e)(ii) and (iii), and 63D; Committee Comments to Rule 63; People v. Britz, 174 Ill.2d 163, 673 N.E.2d 300 (1996), cert. denied, 520 U.S. 1266 (1997); Illinois Judicial Ethics Committee Opinion Nos. 94-18, 96-18. 97-16, 97-17, 98-9, 98-12 and 98-17.

FACTS

The uncle of a judge's spouse and the uncle's son are partners in a two-person law firm. The judge has never been represented by the firm or had any business relationship with the uncle or son. The judge sees the uncle and son socially once or twice a year at family gatherings. The uncle and son represent clients before the judge in various civil and criminal matters.

QUESTION

Is the judge disqualified from hearing cases in which a party is represented by the uncle or the son?

OPINION

Illinois Supreme Court Rule 63C(l)(e) provides in pertinent part:

(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:

* * * * * * * *

(e) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such person:

* * * * * * * *

(ii) is acting as a lawyer in the proceeding.

The Terminology Section of the Code of Judicial Conduct defines "third degree of

relationship" to include, great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece (emphasis added). As a result, a judge is disqualified from any proceeding in which the uncle of the judge's spouse is acting as a lawyer.

The cousin of a judge or judge's spouse, (the uncle's son in the present inquiry) does not by definition fall within the prohibited "third degree of relationship." Accordingly, the judge need not recuse under Rule 63C(l)(e)(ii) from proceedings in which the cousin is representing a party unless there is a rule prohibiting all members of a firm from appearing before a judge who has a "third degree of relationship" with any member of the firm. There is no such rule. See Committee Comments to Rule 63C ("The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify the judge"); and Illinois Judicial Ethics Opinion Nos. 94-18 and 96-18.

However, the inquiry does not end here. The judge must ensure that other provisions of the Code do not require disqualification where the cousin is acting as a lawyer in the proceeding.

Under Rule 63C(1)(e)(iii), if a relative within the third degree of relationship (the uncle in the present inquiry) is known by the judge to have more than a de minimis interest that could be substantially affected by the proceeding, the judge must disqualify. This is true even if the uncle is not counsel of record and the cousin alone is acting as a lawyer in the proceeding. Determining what is de minimis is not aided by the Code's definition of the term as "denot(ing) an insignificant interest that could not raise a reasonable question as to the judge's impartiality." The Committee has, however, previously suggested that a judge consider the following three factors in determining whether a relative of the third degree has more than a de minimis 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 as a partner, shareholder, associate, or of counsel; and

3. The size of the firm. See Illinois Judicial Ethics Committee Opinion Nos. 94-18 and 96-18.

The application of these and other factors must be made on a case-by-case basis. Obviously, if either partner in a two-person firm represents a client in a significant personal injury case, very large estate, or other proceeding which could generate substantial attorneys' fees, each partner has more than a de minimis interest in the outcome of the proceeding. On the other hand, if the case involves representation of an individual in a traffic matter, modest estate, or other matter where significant attorneys' fees are not likely, then each partner's interest is de minimis. A judge is required to make a reasoned assessment of the prohibited relative's interest in each case.

The cousin's participation in a proceeding could also require disqualification of the judge pursuant to the first sentence of Rule 63C(1). That provision states a general ground for disqualification if "the judge's impartiality might reasonably be questioned". However, if the facts giving rise to the potential basis for disqualification relate to any subject specifically addressed in subparagraphs (a)-(e) of Rule 63C(1), the general ground for disqualification in the first sentence of that Rule is inapplicable so long as there are no other reasons to question the judge's impartiality. See Illinois Judicial Ethics Opinion No. 94-18, fn. 2; see generally People v. Britz ("under the doctrine of ejusdem generis, a specific provision, when followed by a general provision…is read to control the general when both relate to the same subject matter").

In this case, as noted above, the specific grounds contained in Rule 63C(1)(e) do not require disqualification on the basis of the cousin's participation or financial interest. Moreover, in light of the limited contact between the cousin and the judge, there are no additional reasons to question the judge's impartiality in any proceedings before the judge in which the cousin participates. The general ground for disqualification contained in Rule 63C(1) is therefore inapplicable.

Finally, it should be noted that where disqualification is required under Rule 63 for any reason other than personal bias or prejudice of the judge, the parties may remit the disqualification by following the procedure set forth in Rule 63D.