The Illinois Supreme Court has adopted a new Code of Judicial Conduct which will go into effect on January 1, 2023. The opinions listed here were published under the prior code, and are now subject to potential changes. The IJEC is currently in the process of reevaluating each of these opinions in light of the new Code of Judicial Conduct, and will be updating the opinions on a rolling basis.

Opinion No. 2016-01

April 5, 2016 

Topic:   Judge privately recommending lawyers to family members and close friends.

Digest: When requested, a judge may privately recommend lawyers to family members and close friends.

References: Illinois Supreme Court Rules 62B and 63C(1)(e); Colorado Judicial Ethics Advisory Board Opinion 2006-01 (2006); New York Advisory Committee on Judicial Ethics Opinion 93-89 (1993); Utah Judicial Ethics Advisory Committee Informal Opinion 11-2 (2011).

Facts

A judge receives a telephone call from her niece requesting the name of a reputable divorce lawyer. The judge provides her niece with the names of three family law practitioners in the jurisdiction in which the judge sits.

Issue

May a judge recommend lawyers to family members and close friends?

Opinion

To protect against the improper use of judicial prestige, Illinois Supreme Court Rule 62B provides: “A judge should not lend the prestige of judicial office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position to influence the judge.”

In their personal lives, judges are just as likely as non-judges to recommend products and services such as restaurants, movies, and books to their friends and family. Few associate the misuse of judicial prestige with these private recommendations. A judge’s recommendation of a lawyer may prove problematic because the public assumes that judges know more than the average person about the qualifications and abilities of lawyers. Thus, it might appear to the ordinary observer that a judge invokes the prestige of the judicial office when recommending a lawyer.

An important consideration in determining whether a judge’s recommendation of a lawyer violates the prohibition against the misuse of judicial prestige is the nature of the relationship between the judge and the person requesting the recommendation. The nature of the relationship is a strong indicator of whether a request is made because of the judge’s official position or for reasons independent of the judge’s office. Long-standing relationships like family relationships carry responsibilities and expectations greater than those that attach to purely social or business relationships. That is why the Code of Judicial Conduct requires judges to disqualify themselves from cases in which a party or lawyer is within third degree of relationship to the judge or the judge’s spouse. See Ill. S. Ct. R. 63C(1)(e).   Here, a niece called her aunt. Almost certainly the niece referred to the judge as “Aunt” or by her first name rather than “judge” during the conversation. Based on the way that family members usually respond when facing a legal issue, the niece probably would have called her lawyer-aunt for advice even before her aunt assumed the bench. The ordinary reasonable person might expect a judge to advise a stranger or acquaintance in need of a lawyer to call the bar association lawyer referral services. But the public simply does not expect a judge to treat her mother, brother, or niece in the same unengaged fashion. Therefore, the Committee concludes that the ordinary reasonable observer would not find a misuse of judicial prestige when a judge privately recommends matrimonial lawyers to the judge's niece.

Nothing in the inquiry indicates that the judge makes frequent referrals or has a financial relationship with the recommended attorneys.  Nor did the judge make the referral in a public forum, for example, in response to a Facebook post. The presence of any of these additional facts might alter the opinion of the reasonable person. Of course, if the niece files for divorce and the proceeding is assigned to the judge recusal will be necessary under Rule 63C(1)(e) because the niece is within the third degree of relationship to the judge.[1]

As the relationship between a judge and the person seeking a recommendation becomes more attenuated, the likelihood increases that a recommendation could be seen as an improper use of judicial prestige. While not attempting to define which relationships negate any implication of the misuse of judicial prestige, the Committee believes that a judge could safely make a private recommendation to family or friends from whose cases the judge would recuse himself or herself. This includes persons within the third degree of relationship to the judge or the judge's spouse. See Ill. S. Ct. R. 63(A)(1). Judges could also safely recommend lawyers to relatives outside the third degree of relationship, for example cousins, and long-standing friends such as old college roommates and neighbors. Lawyer recommendations are more likely to raise misuse of prestige concerns when provided to individuals more accurately described as business or social acquaintances, such as trades’ people employed by the judge, persons living in the same apartment building as the judge, or the judge’s daughter’s soccer coach.

Other judicial ethics advisory committees agree that judges do not misuse the prestige of office by privately recommending lawyers to family members and close friends. See, e.g., Colorado Judicial Ethics Advisory Opinion 2006-01 (2006) (advising that a judge may recommend lawyers to individuals provided that “the judge has a sufficiently close relationship with the requesting party that he would automatically recuse himself from the case due to the closeness of that relationship”); New York Advisory Committee on Judicial Ethics Opinion 93-89 (1993) (advising that a criminal court judge may recommend a private criminal attorney to a friend if the judge states that the recommendation is not an official recommendation); Utah Judicial Ethics Advisory Committee Informal Opinion 11-2 (2011) (advising that a judge may recommend lawyers to his siblings).

Conclusion

A judge may privately recommend lawyers to family members and others whose relationship with the judge is sufficiently close to negate the appearance that the recommendation is buttressed by the judge’s official position.