Opinion No. 96-22
September 16, 1996
TOPIC: Disqualification of judge when ex-spouse's lawyer appears before judge.
DIGEST: Absent personal hostility toward the lawyer or a manifestation of impartiality, disqualification is not required of a judge when a lawyer who represented the judge's former spouse in the judge's dissolution of marriage appears before the judge representing other clients in unrelated matters.
REFERENCES: Illinois Supreme Court Rule 63C(1)(a) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Judicial Ethics Committee Opinion Nos. 95-2 and 95-5; Pepsico, Inc. v. McMillen, 764 F.2d 458 (7th Cir. 1985) People v. Brandshaw, 171 Ill.App.3d 971, 525 N.E.2d 1098 (1st Dist. 1988); and Shaman/Lubet/Alfini, Judicial Conduct and Ethics, 2d Ed.
FACTS
A judge's former spouse is represented by a lawyer during dissolution of marriage proceedings. A Judgement of Dissolution was entered and, after a two-day hearing, the property was divided. Other matters, including custody, were determined by agreement of the parties. The dissolution proceedings were not acrimonious and no appeal was filed. The lawyer who represented the judge's former spouse now appears before the judge representing clients.
QUESTIONS
1. Is the judge disqualified from presiding over cases in which one party is represented by the judge's former spouse's lawyer, and, if so, how long will the disqualification last?
2. Would the answers be different if the lawyer had represented the judge's child(ren) rather than the judge's former spouse?
OPINIONS
Question 1
Illinois Code of Judicial Conduct, Rule 63C(1)(a) states:
(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:
(a) the judge has a personal bias or prejudice concerning...a party's lawyer...;
No other provisions of the Code are applicable.
This provision establishes a two step analysis. First, the judge must determine, objectively, whether the judge's impartiality might be questioned. The use of the term "reasonably" directs that the standard is one comparable to what is referred to in civil as the "reasonable person test" or the "person on the street test":
Whether an objective, disinterested observer fully informed of the relevant facts would entertain a significant doubt that the judge in question was impartial. Shaman, Lubet & Alfini, Judicial Conduct and Ethics, 4.25.
This definition is consistent with that found in Pepsico, Inc. v. McMillen, 764 F2d 458 (7th Cir. 1985) and People v. Brandshaw, 171 Ill.App.3d 971, 525 N.E.2d 1098 (1st Dist. 1988).
It is important to note that, if, during the course of the dissolution, the judge has manifested any evidence from which a "judge's impartiality might reasonably be questioned," then the equation would be influenced by such public conduct and disqualification would be required.
However, if the judge determines under this objective standard that, on the face of the facts, it is not reasonable to question a judge's impartiality, the analysis would proceed to the next step defined in 63C(1)(a). This provision requires a subjective analysis by the judge of personal bias or prejudice.
Shaman/Lubet/Alfini note that "(i)t has been pointed out that personal bias or prejudice is more difficult to ascertain than other types of judicial partiality... Bias and prejudice...tend to be subjective, and their external indicia are difficult to determine precisely." Shaman, Lubet & Alfini, 4.04.
Further, specifically dealing with the possible antipathy toward an individual lawyer, "hostility toward a party's attorney must be both personal and extreme before it is disqualifying." Id. at 4.08.
Thus, on the facts of this inquiry, the first question is whether objectively it is reasonable for a judge to preside over a case in which one of the parties is represented by a lawyer who represented the judge's former spouse in a non-acrimonious dissolution of marriage where there is no evidence that the judge is antipathetic toward the lawyer.
In IJEC Opinion No. 95-2, the Committee opined that it was reasonable to question the judge's impartiality when a lawyer representing the judge appears before the judge.
This inquiry is two degrees removed in that the representation is not of the judge, but of the judge's former spouse opposing the judge; and, the representation is not current but concluded.
Were the representation of the judge's former spouse on matters relating to the dissolution either on-going or current, IJEC Opinion 95-2 would support the conclusion that it is unreasonable for the judge to preside over a case where one of the parties is represented by the lawyer.
Where that representation has concluded and where, as here, the dissolution proceedings were not acrimonious, it is the Committee's opinion that it would not be reasonable to conclude that the judge's impartiality might be impinged.
The next step, then, is for the judge to subjectively review whether the judge holds any personal or extreme hostility toward the lawyer. On point for these purposes is IJEC Opinion 95-5 stating: "The judge should...consult his or her own emotions and conscience and pass what has been called an 'internal test of freedom' from disabling conflict."
Thus, disqualification will be required if the judge herein subjectively believes that he or she is personally hostile to the lawyer such that he or she would be unable to exercise judicial impartiality.
The corollary question which arises from most disqualification questions is whether there is any applicable time period such as is found in Rule 63C(1)(c). The Committee is of the opinion that it would be unreasonable and arbitrary to attempt to establish such a time limit.
Question 2
Finally, the Committee's analysis would be no different if the lawyer's representation was of the judge's child(ren) rather than former spouse. However, the Committee's opinion may vary with each individual fact situation.
