OPINION 93-6

September 21, 1993

TOPIC: Judge accepting the free use of a condominium owned by a lawyer or non-lawyer.

DIGEST: A judge may not accept the free use of a condominium owned by a lawyer, since this is a gift which a judge may not accept. However, a judge may accept the free use of a condominium from a non-lawyer whose interests have not come and are not likely to come before the judge.

REFERENCES: Illinois Supreme Court Rule 65C(4) of the Code of Judicial Conduct, Canon 5, (145 Ill.2d R.65); Illinois Supreme Court Rule 62 of the Code of Judicial Conduct, Canon 2, (145 Ill.2d R.62); In Re Murphy, 2 Ill. Cts. Com. 133, (No. 89 CC 1, 1990); In Re Corboy, 124 Ill.2d 29 (1988).

FACTS

Scenario 1: A judge asks a lawyer who has a condominium in Colorado if the judge could rent it. The lawyer states he never rents the property, but makes it available at no cost to friends and would gladly make it available to the judge. While the lawyer does not appear before the judge, members of his firm do.

Scenario 2: A judge asks a non-lawyer who has a condominium in Colorado if the judge could rent it. The non-lawyer has no litigation before the judge and is unlikely to appear before the judge. The non-lawyer would make the condominium available to the judge without cost.

QUESTIONS

1. May a judge accept the free use of a condominium from a lawyer whose firm members appear before the judge?

2. May a judge accept the free use of a condominium from a non-lawyer who has no cases pending and is unlikely to appear before the judge?

OPINION

Question 1

Illinois Supreme Court Rule 65C(4) of the Code of Judicial Conduct prohibits a judge from accepting any gift, bequest, favor or loan, subject to certain limited exceptions, such as securing a loan from a commercial lending institution in an arm's length transaction.

Therefore, a judge may not accept the free use of a condominium from a lawyer whose firm members may appear before the judge, since the uncompensated use amounts to a gift of the use of the property. Such a transaction may also be characterized as doing the judge a favor.

The lawyer would underwrite the costs of utilities and other services needed to make the condominium habitable, even if the lawyer charged no rent for its use. In Re Murphy, 2 Ill. Cts. Com. 133, (No. 89 CC 1, 1990), held a judge violated Illinois Supreme Court Rule 65C(4) of the Code of Judicial Conduct by accepting the free use of rental cars paid for by a lawyer. Murphy also holds that acceptance of the rental cars at no cost creates an appearance of impropriety.

Moreover, In Re Corboy, 124 Ill.2d 99 (1988), clearly establishes that a lawyer may not make a gift to a judge if the lawyer's firm members may appear in the court on which the judge sits. Therefore, it would be improper for the lawyer to make the free use, essentially the gift of the use, of the property to the judge.

However, a judge may rent the condominium for a reasonable fee.

Question 2

Illinois Supreme Court Rule 65C(4) of the Code of Judicial Conduct permits a judge to accept a gift, bequest or favor "only if the donor is not a party or other person whose interests have come or are likely to come before him..."

Therefore, a judge may accept the free use of a condominium as either a gift or a favor from the non-lawyer so long as the non-lawyer has and had no cases pending before the judge and is unlikely to have any cases come before the judge in the future.

If the judge accepts the free use of the condominium, then the reasonable rental fee for the condominium should be listed on a judge's Statement of Economic Interests.