Opinion No. 98-12
September 9, 1998
TOPIC: Duty of a judge to disclose or recuse if judge's sister-in-law is the secretary of a law firm that often appears before the judge.
DIGEST: A judge need not disclose or recuse if the judge's sister-in-law is the secretary of a law firm that often appears before the judge.
REFERENCES: Illinois Supreme Court Rules 62A & B, 63C(1) and 63C(1)(e)(iii); Committee Commentary to Illinois Supreme Court Rule 63; Potashnick v. Port City Construction Co., 609 F.2d 1101, 1111 (5th Cir. 1980); Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987); Deluca v. Long Island Lighting Co., Inc., 862 F.2d 427, 428-429 (2d Cir. 1988); Adams v. Deaton, Inc., 644 S.2d 189 (La. 1994); Terminology Section of the ABA Model Code of Judicial Conduct; Illinois Judicial Ethics Committee Opinion Nos. 94-18 and 95-9.
FACTS
A judge's sister-in-law is the secretary of a law firm that often appears before the judge. On reflection, the judge cannot conceive that the fact that a sister-in-law is a secretary for this firm could have any chance of influencing any decision the judge might make involving that firm or any client which the firm might represent.
QUESTION
Must a judge disclose or recuse if judge's sister-in-law is the secretary of a law firm that often appears before the judge?
OPINION
Illinois Supreme Court Rule 62 calls for judges to "...avoid impropriety and the appearance of impropriety in all of the judge's activities." Subsection A states: "A judge should respect and comply with the law and should conduct himself or herself at all times in a manner that promotes confidence in the integrity and impartiality of the judiciary." Thus, the purpose of the Rule is to foster the appearance of impartiality in the eyes of the public. This dominant concern with the judiciary's appearance "...stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence." Potashnick v. Port City Construction Co. With this in mind, there must be a much closer nexus between the relative's employment and the feared impropriety or bias to raise questions about the judge's integrity or impartiality. There is no reason to believe that such a distant relationship would, in the general public's perception, bring the impartiality of the judiciary into question.
Similarly, Illinois Supreme Court Rule 62B states that "A judge should not allow (his or her) family, social or other relationships to influence the judge's judicial conduct or judgment..." In IJEC Opinion No. 95-9, a judge's spouse was a secretary for the State's Attorney in a county where the judge was regularly assigned. The judge and spouse did not discuss issues concerning the State's Attorney's Office, other than common discussions which occur between any husband and wife about their work. The committee concluded that the judge should not be disqualified from hearing criminal, juvenile or traffic proceedings, simply because of the spouse's place of employment. There was nothing to indicate that the judge's spouse would ever attempt to influence the judge's judicial conduct or judgment. The facts of this case are similar in that the judge's relative is employed as a secretary for the counsel of one of the parties. There is no evidence to indicate that the judge and the sister-in-law discuss cases or matters before the court, nor that she ever will attempt to influence the judge's judicial conduct or judgment. Indeed, the family relationship in this case is much less intimate than the husband/wife association in IJEC Opinion 95-9. Additionally, IJEC Opinion 95-9 also found that Illinois Supreme Court Rule 63C(1)(e)(iii) was not violated in that situation.
Illinois Supreme Court Rule 63 holds that "A judge should perform the duties of judicial office impartially and diligently." Subsection C goes on to describe situations in which a judge should disqualify him/herself because "the judge's impartiality might reasonably be questioned..." Under the facts of this case, Rule 63C(1)(e)(iii) raises the strongest question as to whether the judge should recuse him/herself from cases involving the law firm at which the sister-in-law is employed, similar to the facts in IJEC Opinion No. 95-9. That rule requires disqualification when "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 a person...(iii) is known by the judge to have more than de minimis interest that could be substantially affected by the proceeding..." The Terminology Section of the American Bar Association Model Code of Judicial Conduct, from which the Illinois Supreme Court Rules were adopted, gives examples of what constitutes a "third degree of relationship" such as a: great-grandparent, grandparent, parent, uncle, aunt, brother, sister, child, grandchild, great-grandchild, nephew or niece. In this case, the judge's spouse is within the third degree of relationship with the individual employed as a secretary at the law firm because they are siblings.
The more difficult and ambiguous wording comes in subsection (iii) with the "more than de minimis interest" requirement. Turning to the Terminology Section of the ABA Model Code of Judicial Conduct, "'de minimis' denotes an insignificant interest that could not raise reasonable question as to a judge's impartiality." The official comments to Rule 63 helps to clarify the extent to which a judge should disqualify him/herself from a case where a relative is somehow involved with the counsel in the case. They state that recusal is not always necessary: "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." The comments go on to suggest that Rule 63C(1)(e)(iii) must be read in light of the broader scope of Rule 63C(1), and only when the relationship between the judge and the individual might reasonably lead to the judge's impartiality being questioned or where "the relative is known by the judge to have an interest...in the law firm that could be 'substantially affected by the outcome of the proceeding'...", might the judge be required to recuse.
There are two avenues which may lead to a judge's recusal of a case under Rule 63C(1)(e)(iii). The first is a subjective approach, where the judge feels his or her "impartiality might reasonably be questioned", in which case disqualification is required. In the facts of this case, the judge has stated that s/he cannot conceive of the sister-in-law's position having any influence on his/her decisions. That leaves only the second approach, an objective one, which might require disqualification. The question here is not how the judge him/herself feels, but how a detached observer -- the common law's "reasonable man" would appraise the situation. The question to be asked is: Would a reasonable person, knowing all the facts, conclude that the trial judge's impartiality could reasonably be questioned? Apple v. Jewish Hospital and Medical Center. Or phrased yet another way, would an objective, disinterested observer fully informed of the underlying facts, entertain significant doubt that justice would be done absent recusal? Deluca v. Long Island Lighting Co., Inc.
A number of factors must be taken into consideration when deciding whether an objective observer would question the judge's impartiality. First, the extent to which the judge is aware of the relative's interest in the law firm which could be "substantially affected by the outcome of the proceeding." In this case, the sister-in-law is assumed to be on salary and the outcome of the case would appear to be of no economic consequence to her. Other factors looked to have been "the status of the judge's relative as a partner or an associate, the prominence of the judge's relative's name in the firm name, the size of the court, the size of the community, (and) the frequency of the firm's appearance in the judge's court..." Adams v. Deaton, Inc. The only factor in this case that suggests recusal is the frequency with which the firm appears before the judge. However, this factor alone does not come close to requiring a recusal by the judge. Obviously, there may be circumstances in which a judge's sister-in-law's involvement in a case would merit disqualification, but under the facts of this case, no such action is warranted because she does not have more than a de minimis interest in the outcome of a proceeding before the judge.
Having found no basis for disqualification, this committee suggests that the judge follow its practical admonition 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 under the circumstances of the particular case, the information is relevant to a reasonable argument that disqualification is required." (See also IJEC Opinion No. 95-9).
