1997-04: Judge previously represented one of lawyers who now appears before him or her in case.

Opinion 97-04
March 5, 1997

TOPIC: Judge previously represented one of lawyers who now appears before him or her in case.

DIGEST: Judge is not disqualified merely because the judge previously represented one of the lawyers now appearing in case before him or her, as long as the judge has no personal bias or prejudice for or against the former client.

REFERENCE: Illinois Supreme Court Rule 63C(1), 63C(1)(a), (b) and (c) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Illinois Judicial Ethics Opinion Nos. 93-10, 95-2, 96-20 and 96-22.

FACTS
A newly appointed judge believes it is likely that he or she will be assigned to a court in which a lawyer he or she formerly represented will appear before him or her. Approximately nine months ago, the judge represented this attorney when the attorney was subpoenaed as a witness in a grand jury proceeding. The judge had known the attorney for years, but this was the only time the judge represented this attorney. The judge conferred with the attorney for about an hour and spent about another hour with the attorney at the grand jury proceeding. The attorney paid the judge's fee and the attorney-client relationship ceased.

QUESTION
Is the judge disqualified from hearing cases in which his or her former client will appear before him or her as an attorney for a party?

OPINION
No. Rule 63C(1), (a), (b) and (c) read as follows:
63C. DISQUALIFICATION.
(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 or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
(c) the judge was, within the preceeding 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.
The prohibition of 63C(1) applies to any circumstance where "the judge's impartiality might reasonably be questioned..." What's "reasonable" should be interpreted in light of circumstances of the next three subparagraphs.
(a) does not seem to apply because the facts do not mention any personal bias or prejudice.
(b) is concerned with circumstances where the case now before the court was one where the judge or a former partner had something to do with that same case while he or she was a lawyer. (b) completely disqualifies a judge if he or she had previously served as an attorney in the matter that is now before the court and that is not the situation here. Further (b) disqualifies a judge if it was a former partner who represented any party while they were partners in regard to the matter now before the court. That is not the situation now.
(c) analyzes circumstances where the cases are not the same but where either the judge or a former partner represented a party that is now before the court. (c) disqualifies a judge for three years if it were a former partner that represented the party now in court. If it were the judge who represented the party, albeit, in a different matter, then the disqualification is for seven years.
Neither of these situations is posed in the question presented. It is not the party that had a connection with the judge but the attorney for the party and thus (c) does not disqualify this judge.
IJEC 95-2 poses the flip side of this inquiry: Disqualification of a judge when a litigant is represented by a lawyer who currently or formerly represented the judge. In 95-2 the committee took the position that the relationship of the lawyer having formerly represented the judge could reasonably cause the judge's impartiality to be questioned and, therefore, the judge was disqualified. However, the length of the disqualification was indefinite -- not more than three years.
Further, 95-2 suggests that the disqualification might be less than three years depending on the gravity and length of the lawyer's representation. The opinion then suggests that the judge disclose the disqualification and the lawyers may then proceed with the process for a remittal of disqualification under Rule 63D or just allow the case to be transferred to another judge.
That solution does not fit as well with this question. The dynamics of a prior relationship of a judge acting as a lawyer for the lawyer of the party is much different than the relationship of a lawyer of a party having represented the judge. When analyzed, it is not very likely that a judge should be presumed biased in favor or against a party now before the court because the party's attorney had been represented by the judge when he was a practicing lawyer.
IJEC Opinion 93-10 involves the circumstance where a lawyer for a party was a former partner of the judge. The disqualification in that instance under Rule 63C(1)(c) is for three years. It would appear that any presumption of bias for a former partner would be much greater than for a former client who is now representing a party before the court.
IJEC Opinion 96-20 involves a lawyer for a party before the court who is the judge's former campaign manager and holds that there is no presumed bias. This relationship seems to be much stronger than the relationship between a lawyer and a former client.
Finally, IJEC Opinion 96-22 involves a lawyer for a party before the court who had been the lawyer for the judge's ex spouse in the judge's divorce proceedings and held that this did not raise a presumed bias. This situation seems much stronger than any possible bias by a judge toward a party whose lawyer had been a client of the judge.
Thus, no bias or disqualification should be presumed just because a party before the court is represented by a lawyer the judge formerly represented. Absent any personal bias or prejudice, a judge is not disqualified simply because the judge previously represented the lawyer for one of the parties before the court.
Although a judge is not required to disclose the fact of his or her previous representation of a lawyer for a party before the court, disclosure may be appropriate under some circumstances. However, in considering whether to make such disclosure, the judge should take care not to disclose information covered by the lawyer's obligation of confidentiality or the attorney-client privilege