Opinion No. 98-17

November 10, 1998

TOPIC: Duty to disqualify or disclose when a lawyer is a member of the judge's former law firm and has represented the judge in real estate closings.

DIGEST: Judge does not have a duty to disqualify or disclose when, (1) relationship with lawyer's firm ended thirty-three years ago; (2) lawyer's representation of judge in two routine real estate closings took place four and nine years ago.

REFERENCES: Illinois Supreme Court Rule 63C(1)(c); Illinois Judicial Ethics Committee Opinion Nos. 93-10, 94-18 and 95-2.

FACTS

A judge has recused himself or herself from all cases involving representation by his or her former law firm since s/he became a judge in 1965. Currently, a partner in the firm represents a party in a case assigned to the judge. In addition, the judge was represented by the lawyer in a routine real estate closing in 1989 and a routine closing in 1994.

QUESTIONS

1. Is the judge disqualified from the pending case either because of his or her former relationship with the lawyer's firm or because the lawyer represented the judge in two real estate closings?

2. Does the judge have a duty to disclose the former relationships with the lawyer?

OPINIONS

Question 1

Illinois Supreme Court Rule 63C(1)(c) provides that:

(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:

* * *

(c) the judge was within the preceding three years, associated in the private practice of law with any firm or lawyer currently representing any party in the controversy ...

Here, the judge has not been associated in the practice of law with the lawyer's firm for thirty-three years, far beyond the three year disqualification period found in Rule 63C(l)(c). Therefore, the judge need not recuse himself or herself from the case on the basis of his or her former relationship with the lawyer's firm. See Illinois Judicial Ethics Committee (IJEC) Opinion No. 93-10 (Rule 63C(l)(c) only requires recusal from a former partner's case for three years unless the judge had previously represented the party).

The Committee has previously determined that, while not expressly included as a potential ground for disqualification in Rule 63C, a judge's impartiality might reasonably be questioned when a lawyer currently representing a judge, appears before the judge on another matter. IJEC Opinion No. 95-2. In IJEC Opinion No. 95-2, the Committee observed that Rule 63C does not prescribe the length of the disqualification after the attorney-client relationship ends. In concluding that the length of the disqualification must be determined on a case by case basis, the Committee stated:

It might be easy to select the three-year or seven-year standard and argue that such a period would serve as a "safe harbor" for any judge who has previously been in a lawyer-client relationship with a lawyer representing a litigant, but to do so would be a disservice. One can analogize different types of representation to these differing standards. For example, representation of the judge on a ticket for exceeding the speed limit or at a closing on the purchase of a home may well be de minimis such that that lawyer could appear before the judge immediately following termination of the representation. In contrast, the lawyer representing the judge in the judge's dissolution of marriage involves a more extensive lawyer-client relationship where the three-year standard might be appropriate.

Assuming that no unusual circumstances surrounded the real estate closings, or other special relationship exists between the lawyer and the judge, the fact that the attorney represented the judge in the two closings described in this Opinion does not raise a reasonable question as to the judge's impartiality.

Question 2

A judge is not required to disclose information to the parties or attorneys pertaining to a disqualification issue if the judge determines that he or she is not disqualified. IJEC Opinion Nos. 94-18 and 93-10. Although the Illinois Code of Judicial Conduct does not require disclosure of information regarding disqualification, the Committee has previously expressed its opinion that disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. IJEC Opinion No. 94-18. Disclosure, in appropriate situations, serves several purposes including, (1) promoting public confidence in the judiciary by eliminating the possibility that a lawyer later discovers the information and concludes that the judge improperly failed to recuse; and (2) allowing the parties to preserve the disqualification issue for appeal. See IJEC Opinion No. 94-18.

The fact that the judge was associated with the lawyer's firm thirty-three years ago is not relevant to a reasonable argument for disqualification. As a result, the judge need not disclose the former association. IJEC Opinion No. 93-10 (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). Likewise, mere representation in two routine real estate closings, the most recent being four years ago, in the absence of any other information raising questions about the judge's impartiality, would not support a reasonable argument for disqualification. Therefore, there is no need to disclose the former attorney-client relationship.