2012-01: Disqualification of Judge from Cases Transferred to a Lawyer as a Part of the Sale of the Judge’s Father’s Law Practice

DISCLAIMER:  This Opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023, by the 2023 Illinois Code of Judicial Conduct.  This Opinion does not consider or address whether the 2023 Code affects the analysis or conclusion of the Opinion.  A table cross-referencing the 1993 Code to the 2023 Code can be found at IJEC CORRELATION TABLE.

IJEC Opinion No. 2012-01

July 11, 2012

TOPIC

Disqualification of judge from cases transferred to a lawyer as a part of the sale of the judge’s father’s law practice.

DIGEST

A judge is disqualified from cases in which the judge knows that the judge’s father retains a monetary interest after the sale of the father’s law practice. The Committee suggests that when the purchaser of the practice appears before the judge, the judge inquire of the purchaser whether the judge’s father retains a monetary interest in the case in which the purchaser appears as counsel.

REFERENCES

Illinois Supreme Court Rule 63C(1)(d)(e); Illinois Supreme Court Rule 63D; Illinois Judicial Ethics Committee Opinion 01-2 (2001).

FACTS

The inquiring judge (“Inquiring Judge”) presides over the general division in a small downstate county . An associate judge in the same courthouse hears all of the cases in which the Inquiring Judge’s father (“IJF”) appears as counsel. Attorneys X and Y (“Buyers”) have entered into a written agreement with the Inquiring Judge’s father (“IJF”), who is an attorney practicing in the same community. Under this agreement (“Agreement”), the IJF will sell his law practice to Buyers upon his retirement. Thereafter for a period of six years, on the provision of legal services by Buyers to the IJF’s clients, the IJF will receive a percentage of the resulting legal fees. There is no present agreement for IJF to become otherwise associated with Buyers.

QUESTIONS PRESENTED

1. Following the IJF’s retirement, is the Inquiring Judge precluded from hearing Buyers’ cases in which the IJF (or IJF’s estate) may ultimately receive a percentage of the attorney’s fee?

2. If the answer to Question No. 1 is “yes,” what efforts must the Inquiring Judge make to determine whether cases involving Buyers could result in a referral fee to IJF or IJF’s estate?

OPINION

Issue 1

Supreme Court Rule 63C(1)(d) and (e) state:

“(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: . . .

(d) the judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding, or has any other more than de minimis interest that could be substantially affected by the proceeding . . .”

(e) the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

…(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding…

Supreme Court Rule 63C(2) states: “A judge shall keep informed about the judge’s personal and fiduciary economic interests, and make a reasonable effort to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household.” Following the IJF’s retirement, the potential for referral fees to the IJF or the IJF’s estate will commence., At that point, the Inquiring Judge will be disqualified from cases handled by Buyers with respect to which the Inquiring Judge knows that the IJF or IJF’s estate may ultimately receive a fee. Such matters would clearly involve situations where the IJF or IJF’s estate has an economic interest in the subject matter in controversy. See Illinois Judicial Ethics Committee Opinion 01-2 (2001) (“[A] judge is disqualified from hearing cases in which the law firm of the judge's spouse is entitled to a referral fee if the spouse's interest in the case is more than de minimis.”). 

Issue 2

Although the Code of Judicial Conduct requires disqualification if the judge knows that the IJF has a greater than de minimis interest in a proceeding, the Code does not impose a duty on the judge to acquire knowledge that the judge does not already possess. The Terminology section of the Code defines “knows” to “denote[] actual knowledge of the fact in question,” but notes that a “person’s knowledge may be inferred from circumstances.” Here, although the Inquiring Judge knows that the IJF has an economic interest in certain cases handled by Buyers, unless the judge knows that a party to a particular case was a client of IJF, it is doubtful whether the judge would be considered to “know” that the IJF has such an interest in any given case. The determination regarding the judge’s knowledge may be a function of the extent to which the Buyers’ clients consist of former clients of the IJF. The mere possibility that a particular case might involve a matter in which the IJF has an economic interest would be unlikely to constitute knowledge that such an interest exists. On the other hand, if an overwhelming percentage of Buyers’ clientele consists of former clients of IJF and the Inquiring Judge is aware of that fact, the judge’s resulting knowledge of an extremely high probability that the IJF would have an interest in a given case involving Buyers might be sufficient to be considered knowledge of such an interest. The Committee, however, has not been provided facts which suggest that to be the case.

If the Inquiring Judge does not “know” that the IJF has an economic interest in a particular case, does the Code require the judge to make an effort to determine whether such an interest exists? As mentioned above, Supreme Court Rule 63C(2) expressly states that “reasonable efforts” are required “to keep informed about the personal economic interests of the judge’s spouse and minor children residing in the judge’s household.” The principle expressio unius est exclusio alterius (the express mention of one thing excludes all others) suggests that a judge does not have a duty to keep informed about the financial interests of a judge’s parents. Regardless of whether judges are required to keep informed about their parents’ potential financial interest in matters coming before them, the Committee recommends that the Inquiring Judge inquire whether the IJF has an economic interest in matters in which Buyers are counsel. If the Inquiring Judge failed to conduct such an inquiry, the judge would be vulnerable to being second-guessed if it should turn out that the IJF had an economic interest in a particular case over which the judge presided. The Committee believes it would be prudent, even if not ethically required, to avoid any such risk. Accordingly, the Committee recommends that the Inquiring Judge ask Buyers, in any matters in which Buyer appear before the Inquiring Judge following the retirement of the IJF whether the IJF (or the IJF’s estate) may receive a share of Buyers’ fees on the case. If the answer is “yes,” the Inquiring Judge will have gained knowledge that the IJF or the IJF’s estate has an economic interest in the case and, therefore, would be disqualified from presiding over that case. But even in cases where the Inquiring Judge is disqualified, the parties and their attorneys may remit the disqualification by following the procedure set forth in Supreme Court Rule 63D.