1996-09: Winding up private practice.

Opinion No. 96-9

April 17, 1996 

TOPIC: Winding up private practice. 

DIGEST: While a new judge should endeavor to wind up his or her private practice as quickly as possible, a judge may pursue business relations if they do not detract from the dignity of the court or interfere with his or her duties as a judge. 

REFERENCES: Illinois Supreme Court Rules 65C(1)(c), (2) and (3) of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65). 


When elected two years ago, the judge settled with his or her partners as to his or her share of the partnership and reduced that to a contract which would be paid out over a period of five or six years. While the remaining partners agreed to take responsibility for the lease of the office, the lessor would not release the judge from his obligation on the lease. Now, two years later, the lease is about to expire but the partners find that if they exercise a provision in the current lease that permits them to extend the current lease at the same rental, rather than entering a new lease, then they have a right to keep the rent at the same amount and avoid an increase in the rental that has been indicated by the lessor. However, the judge would have to remain on the extension. The judge feels this would actually assist the remaining partners in their obligation to pay off what is remaining on the contract. The judge plans to recuse himself from cases connected to his former firm until his contract payments are satisfied. In his Circuit, this would not occur frequently and, when it did, it would not impose a serious burden on the Circuit. Other judges are readily available. 


May the judge agree to remain liable on the extension of the lease of his or her former partnership even though that will extend his connection to the firm for a period of three years? 


Yes. The idea of having any business dealings with a judge's former law firm may cause any new judge to pause and think because it is well known that a judge may not continue to practice law. However, this involves a business lease and that is not the practice of law. Rules 65C(1), (2), and (3) cover the financial activities of judges. They prohibit business dealings that tend to reflect adversely on his or her impartiality, interfere with the proper performance of his or her judicial duties, exploit his or her judicial position, or involve him or her with frequent transactions with lawyers or other persons likely to come before the court. 

Under Rule 65C(1)(c), the judge is already disqualified for a period of three years by virtue of the fact that these lawyers were his former partners. A better analysis of the ethical problem might be to view the situation, not from whether the judge can continue to sign on the lease extension, but how would the fact that he is on a lease like this bear upon the propriety of the judge hearing a particular case. Here, a business has a lease on which a number of people have personal liability. 

Rule 65C(2) says that a judge may hold and manage investments, including real estate, and engage in the activities usually incident to the ownership of such investments, but a judge should not assume an active role in the management or serve as an officer, director or employee of any business. This rule does not appear to pose a serious problem. 

Rule 65C(3) says that a judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so without serious financial detriment, he should divest himself of investments and other financial interests that might require frequent disqualification. The judge's efforts to wind up his private practice, fit the requirements of this rule. Thus, under these facts, it would be permissible for a judge to agree to exercise this lease option.