Opinion 13-02
April 16, 2013

TOPIC: Judge presiding over criminal cases where the judge, within the last three years, was engaged in the private practice of law with someone currently employed as a part-time Assistant State’s Attorney.

DIGEST: A judge would not be disqualified from hearing all criminal cases even though the judge, within the previous three years, was associated in private practice with a current part-time Assistant State’s Attorney. A judge would be disqualified from hearing any criminal matter in which the part-time Assistant State’s Attorney appeared or otherwise participated. The disqualification could be remitted by the parties in accordance with Supreme Court Rule 63D.

REFERENCES: Illinois Supreme Court Rules 63C(1)(c), 63C(1)(e)(ii), and 63D; Illinois Judicial Ethics Committee Opinion Nos. 98-7 and 95-02.

FACTS

A new judge was formerly engaged in private practice in a small law firm. The firm included an associate who, in addition to being engaged part-time in private practice with the judge, was also employed part-time as an Assistant State’s Attorney. The former associate continues to serve as a part-time Assistant State’s Attorney.

The State’s Attorney’s Office consists of the elected State’s Attorney and two part-time assistants, including the judge’s former associate. The new judge is not hearing any case involving the judge’s former firm. In addition, the former associate does not appear before the judge on behalf of the State’s Attorney’s Office.

QUESTIONS

1. Is a judge disqualified from hearing any criminal cases where the judge was formerly engaged in the private practice of law with a part-time Assistant State’s Attorney?

2. Is the judge disqualified from hearing any criminal case in which the former associate and part-time Assistant State’s Attorney participates but does not appear in court?

3. Is any disqualification relating to the former associate subject to remittal?

OPINION

A. Cases in which the Judge’s Former Associate Does Not Participate

This inquiry involves Supreme Court Rule 63C, which requires disqualification where a judge’s impartiality might reasonably be questioned. Rule 63C(1)(c) provides a bright-line disqualification by requiring a judge’s disqualification in a proceeding where the “judge was, within the preceding three years, associated in the private practice of law with any law firm or lawyer currently representing any party in the controversy….”

The judge here was associated in the private practice of law with the former associate who currently serves as a part-time Assistant State’s Attorney. Similar facts were addressed by this Committee in Illinois Judicial Ethics Committee (“IJEC”) Opinion No. 98-7, were a judge had been associated in private practice with the newly elected State’s Attorney. The Committee concluded that the judge would be disqualified from hearing criminal matters in which the State’s Attorney appeared or argued the case.

The opinion further concluded, however, that the judge would not be disqualified from hearing all criminal cases because of the State’s Attorney’s former association with the judge. The Committee specifically opined that “the judge is not disqualified if the prosecutor in court is an assistant rather than the elected State’s Attorney who had been the judge’s former associate.” It was noted that the vicarious disqualification that would ordinarily apply to all members in a firm does not apply to public service such as the State’s Attorney’s office. IJEC Opinion No. 98-7.

Accordingly, the judge would not be subject to a global disqualification from hearing matters prosecuted by the State’s Attorney’s office. The judge would be prohibited, however, from presiding over matters in which the former associate appears on behalf of the State’s Attorney’s Office.

B. Former associate’s participation in cases outside of court

Opinion 98-7 did not address the question of a former associate’s involvement in a criminal case outside of court. The question is whether any participation by or handling of a matter by the Assistant State’s Attorney constitutes “representing any party” under Rule 63C(1)(c). Representation of a party contemplates and encompasses the rendering of any professional services and is not merely limited to court appearances. This Committee in IJEC Opinion No. 05-02 observed that the phrase “acting as a lawyer in the proceedings” under Rule 63C(1)(e)(ii) is construed broadly, to include assisting with discovery, communicating with an expert witness, and signing a criminal complaint. (See IJEC Opinion No. 05-02 and cases cited therein). Under these circumstances, the conduct of “representing a party” encompasses “acting as a lawyer in the proceedings,” and accordingly, the judge would be disqualified from presiding over any case in which the Assistant State’s Attorney professionally participates in any manner.

The Committee recommends that the judge inform the State’s Attorney in writing that he will recuse himself from hearing any cases in which the Assistant State’s Attorney participates, either in or out of court, during the three-year period specified by Rule 63C(1)(c). As the judge would generally have no means of determining whether the Assistant State’s Attorney has participated in a matter outside of court, although not required by the Code of Judicial Conduct it would be advisable for the judge to request the State’s Attorney to notify the judge, counsel in any matter, or any pro se litigant, in a writing that would be placed in the court file, of those circumstances which would require the judge’s recusal.

C. Remittal of disqualification

The judge’s disqualification can be remitted (waived) by the parties pursuant to Supreme Court Rule 63D. Other than in the case of a judge’s personal bias or prejudice concerning a party, Rule 63D allows a judge who is disqualified under Rule 63C to disclose on the record the basis for the disqualification and ask the parties and their lawyers to consider, out of the presence of the judge, whether to waive the disqualification. If all the parties and lawyers agree to waive the disqualification, the agreement is to be incorporated in the record of the proceedings and the judge may preside over that case.