Opinion No. 98-7

April 8, 1998

TOPIC: Is a judge disqualified in criminal cases where the newly elected State's Attorney was, within the last three years, the judge's associate in the private practice of the law?

DIGEST: A judge is not disqualified from hearing all criminal cases because the elected State's Attorney was the judge's associate in private practice less than three years ago.

REFERENCES: Illinois Supreme Court Rules 63C(1)(c) and 63D; Sec. 3E(1)(b) of the ABA Model Code of Judicial Conduct; ABA Informal Opinion No. 87-1524; Illinois Judicial Ethics Committee Opinion Nos. 93-10; 94-18; 95-15; 95-20; 96-18; 96-20; and 97-17; Nobelpharma v. Implant Innovations, Inc., 930 F. Sup. 1241 (N.D. Ill. 1996); United States ex. Rel. Link v. Lane, 811 F. 2d 1166, 1171 (7th Cir. 1987); FDIC v. O'Malley, 643 N. E.2d 825, 163 Ill. 2d 130 (1994); People v. Del Vecchio, 544 N.E.2d 312, 129 Ill.2d. 265 (1989), cert denied, 110 S. Ct. 1540 (1990); People v. Storms, 617 N.E.2d 1188, 155 Ill.2d 498 (1993); Gluth Bros. Construction, Inc. v. Union Nat'l Bank, 548 N.E.2d 1364, 192 Ill. App. 3d 649, 655 (2d. Dist. 1989), appeal denied, 131 Ill. 2d 559 (1990); FDIC v. O'Malley, 618 N.E.2d 818, 249 Ill. App.3d 340, 367-68 (1st Dist. 1993), aff'd, 163 Ill. 2d 130 (1994); Woods v. Durkin, 539 N.E.2d 920, 183 Ill. App. 3d 870 (3d Dist. 1989).

FACTS

At the last election, the judge was elected to the judiciary and the judge's associate in private practice was elected as State's Attorney for the same county. The law firm consisted of a three person partnership with several associates. This relationship is well known to all the attorneys and most of the citizens of the area. The judge has posted a notice disclosing this relationship and offering to disqualify himself upon request. In reality, it is an assistant rather than the elected State's Attorney that actually appears before the judge.

QUESTIONS

1. Is a judge disqualified from hearing criminal cases argued by the newly elected State's Attorney who was his former partner?

2. Is a judge disqualified from hearing criminal cases argued by the newly elected State's Attorney who was his former associate?

3. Is the judge still disqualified if the cases are actually prosecuted by an Assistant State's Attorney?

4. Would disclosure help?

OPINIONS

Rule 63C(1)(c) provides in part that:

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 . . .the judge was, within the preceding three years, 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.

Rule 63D provides that:

D. REMITTAL OF DISQUALIFICATION: -- A judge disqualified by the terms of Section 3C may disclose on the record the basis of the judge's disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. This agreement shall be incorporated in the record of the proceeding.

Question 1

Yes, a judge is disqualified from hearing criminal cases argued by the newly elected State's Attorney who was his former partner within the preceding three years.

In IJEC Opinion No. 93-10 the Committee determined that a judge who had been a partner nine years ago in a law firm representing a party is not disqualified because Illinois Supreme Court Rule 63C(1)(c) limits disqualification on that ground to a three-year period. The Committee recognized that "the plain language of Rule 63C(1)(c) should apply -- a partner is a problem for three years and that ends it."

Question 2

Yes, a judge is disqualified from hearing criminal cases argued by the newly elected State's Attorney who was a former associate within the preceding three years.

In ABA Informal Opinion No. 87-1524 (December 14, 1987), the ABA Committee on Ethics and Professional Responsibility Committee was asked to decide an almost identical question to that asked of this Committee. Specifically, the question posed was "whether the ABA Code of Judicial Conduct (1972, amended 1984) required the disqualification of a recently appointed judge in the trial of civil and criminal cases in which a former associate of the judge, now an elected State's Attorney, represents the State or County." The facts before that Committee were that the judge was a partner in a law firm two years ago when the associate left the firm to go into public office. There was no close personal relationship between the judge and the former associate, who worked in an office in another city thirty miles from the office where the judge worked. The Committee determined that based on these specific facts the judge was not disqualified from trials in which the judge's former associate participated as counsel as a result of their prior association in the same law firm.

In reaching this conclusion, the Committee decided that where a former associate is appearing as counsel before a judge as in the present situation to apply the general standard set forth under Canon 3C(1) of the ABA Code of Judicial Conduct which provides that "[a] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned". This general standard was explained to the Committee that drafted the Code in E.W. Thode's Reporter's Notes to the Code of Judicial Conduct 60 (ABA/ABF 1973) as "[a]ny conduct that would lead a reasonable man knowing all the circumstances to the conclusion that the judge's impartiality might reasonably be questioned is a basis for the judge's disqualification." The Committee noted that pursuant to the Thode's Reporter's Notes important considerations are whether the judge's impartiality can be reasonably questioned because of the former association and that the longer the judge is on the bench, the less the likelihood that the general standard will require his disqualification because of that former association. Id. at 63.

Upon examining the periods set forth by federal courts and statutes for disqualification of judges in cases involving their former law clerks, the Committee noted that in United States v. Hollister, 746 F. 2d. 420 (8th Cir. 1984) the appellate court found no reversible error in the trial court's denial of defendant's motion to disqualify the judge, absent proof of bias or favoritism, even though the prosecuting attorney had served as the judge's law clerk only three months earlier. The court nevertheless proposed a one-year recusal period following the end of clerkships with district court judges in the Eighth Circuit leaving it to each judge's discretion when the judge should recuse himself or herself. See also Smith v. Pepsico, Inc., 434 F. Supp. 534 (S.D. Fla. 1997) (absent a showing of bias, recusal denied where counsel had been the judge's law clerk more than two years earlier); Bumpus v. Uniroyal Tire Co., 385 F. Supp. 711 (E.D. PA.1974) (disqualification denied where, more than a decade before the judge and counsel had been law partners); U.S. Sup. Ct. R. 7 (imposing a two year insulation period for Supreme Court appearances by former Supreme Court law clerks).

The Committee concluded that, in the absence of a local court rule specifying a precise time interval, the period after which the judges' impartiality may not reasonably be questioned depended on a number of factors such as the closeness of the relationship between the judge and the former partner, associate or law clerk and the extent of any continuing personal or social relationship between the two in the interval since the professional association ceased.

In Illinois, it is clear that a three year time period is specified by Rule 63C(1)(c). Consequently, although this Committee along with the state and federal courts in Illinois has recognized that some circumstances, invoking other subparts of Rule 63C, do not warrant automatic disqualification, those subsections do not impose the specific time frames set forth under subsection (1)(c) and rely instead on more subjective qualifications. See e.g. Nobelpharma v. Implant Innovations, Inc., 930 F. Supp. 1241, 1267 (N.D. Ill. 1996) (automatic disqualification should not result merely because of a relative's presence at a firm and recognizing status differences between a partner, a salary non-equity partner, and an associate). For example, in IJEC Opinion No. 94-18, this Committee specifically suggested that two of the three factors to consider in determining whether a relative has more than a de minimis interest under Rule 63C(1)(e) were "the relative's position in the firm as partner, shareholder, associate, or of counsel and the size of the firm." The Committee drew a distinction between situations where a relative was a partner in a two-person firm and where a relative was a beginning associate in a 200 person law firm and found the second scenario exemplary of a de minimis interest where the case involved only a few thousand dollars. Likewise, this Committee has concluded that "there was no `association' in the practice of law between the judge, formerly a solo practitioner, and the lawyer which would mandate disqualification pursuant to the Rules" where the judge and lawyer had been co-counsel in two trials but there had been no business relationship as no referral fees were involved and they had each been paid their specific and separate attorney's fees by the client. See IJEC Opinion No. 96-18.

This Committee has also recognized that a common theme that runs throughout many cases that leads to a judge's disqualification is that the judge has a "present, ongoing relationship with the attorney while the case was still pending." Gluth Bros. Construction, Inc. v. Union Nat'l Bank, 548 N.E.2d 1364, 192 Ill. App. 3d 649, 655 (2d. Dist. 1989), appeal denied, 131 Ill. 2d 559 (1990). Thus, courts have held that it was reasonable to conclude that an appearance of impropriety existed in situations which involved a current relationship between the judge and one of the attorneys. Id.; see also IJEC Opinion No. 96-20.

Similarly, Illinois state and federal courts have rejected the rule that recusal is mandatory "if the trial judge was in any way associated with the case." United States ex. Rel. Link v. Lane, 811 F. 2d 1166, 1171 (7th Cir. 1987). This rule has been applied to cases where the judge was formerly the partner in charge of all cases associated with a specific client (FDIC v. O'Malley, 643 N. E.2d 825, 163 Ill. 2d 130 (1994)), as well as where the judge was formerly in a supervising position in the State's Attorney's office. See, e.g., People v. Del Vecchio, 544 N.E.2d 312, 129 Ill.2d. 265 (1989), cert denied, 110 S. Ct. 1540 (1990); People v. Storms, 617 N.E.2d 1188, 155 Ill.2d 498 (1993). Specifically, the rule that has emerged is that "[m]erely having a previous involvement with a defendant does not, per se, require disqualification. The important phrase is 'acted as counsel'". Id. at 277.

Despite such distinctions, the current situation does not fall outside the parameters for automatic disqualification. Under the facts presented to this Committee, although the State's Attorney is no longer associated with the judge's former firm nor was he ever a partner, both the judge and the State's Attorney were associated with the same firm within the three year time period specified by Rule 63C(1)(c). Consequently, because less than three years has passed, the judge's impartiality might reasonably be questioned which mandates disqualification. As Justice Gordon recognized in his dissent in FDIC v. O'Malley, 618 N.E.2d 818, 249 Ill. App.3d 340, 367-68 (1st Dist. 1993), aff'd, 163 Ill. 2d 130 (1994)) "[w]hile the scope of 63(C)(1)(c) is perhaps stricter than necessary particularly in the case of mega law-firms with several hundred partners and clients numbering in the hundreds if not thousands, it is not wholly inappropriate with respect to smaller firms where every partner is aware of the various clients which the firm represents and the resultant benefits which he or she may derive from it. In any event it is not for us to redraft the rule by judicial fiat but to enforce its provisions as we find them." So too must this Committee enforce the provisions of Rule 63(C)(1)(c) as we find them.

Question 3

No, the judge is not disqualified if the prosecutor in court is an assistant rather than the elected State's Attorney who had been the judge's former associate.

The commentary on Sec. 3E(1)(b) of the ABA Model Code is helpful and practical:

A lawyer in a government agency does not ordinarily have an association with other lawyers employed by that agency within the meaning of Sec. 3E(1)(b); a judge formerly employed by a government agency, however should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.

The special treatment of lawyers from or in public offices was applied to Public Defenders in IJEC Opinions 95-15 and 95-20. In those opinions the Committee determined that the vicarious disqualifications inapplicable to members of the Public Defender's Office were inapplicable to present members of that office as well as to members who later became judges. Thus, the vicarious disqualifications that would ordinarily apply to all members in a firm would not follow when applied to public service like the Public Defender's or the State's Attorney's Office. See also IJEC Opinion No. 97-17 (Fact that city prosecutor is judge's tenant and owes judge money does not require disqualification of judge from hearing cases prosecuted by part-time assistant prosecutors who have no association with the City prosecutor in private practice.)

Question 4

Yes, disclosure would help and in fact is required as to the elected State's Attorney who had been the judge's former associate.

Pursuant to Rule 63D, even where a judge is disqualified by the terms of 63C, the judge may disclose on the record the basis for his or her disqualification and may ask the lawyers to consider out of the judge's presence whether to waive disqualification. Disclosure on the record with an oral waiver does not fulfill the requirements and does not result in an effective waiver of those requirements. Woods v. Durkin, 539 N.E.2d 920, 183 Ill. App. 3d 870 (3d Dist. 1989). In Woods, the appellate court specifically held that once Rule 63(C) comes into play, the judge must disqualify himself or both the parties and their attorneys must comply with Rule 63D. Id. at 875. Accordingly, although posting a notice is a convenient way of disclosure, it does not comply with the requirements of Rule 63D and without more, i.e. disclosure on the record and a written agreement, would not effectively remit the disqualification necessary.

This method of disclosure could be used, however, where disqualification is not mandatory such as with the assistant state's attorney. See IJEC Opinion Nos. 93-10, 96-18. This Committee has noted, that "[a]lthough the Illinois Code does not contain either a recommendation or requirement that judges disclose information regarding disqualification, the Committee herein reiterates its belief that such disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. Disclosure avoids any suggestion that the judge concealed important information regarding disqualification and allow the parties to preserve the disqualification issue for appellate review." IJEC Opinion No. 96-18.

This Committee also points out, as noted in IJEC Opinion Nos. 94-18 and 96-18, that "a judge who (that) permits himself or herself to be disqualified, at the determination of the parties or their lawyers in cases where the disqualification is not required by Illinois Supreme Court Rule 63C is creating an unnecessary and undesirable opportunity for forum shopping. This concern is particularly acute in smaller communities where there are fewer judges and a higher likelihood that judges may have close relatives in local law firms." Similarly, this Committee believes that a similar concern exists in smaller communities where there are fewer law firms and a higher likelihood that judges and associates may have been at the same firm at some time.