Opinion 10-02
September 16, 2010

TOPIC: Disqualification of judge from, and application of Rule of Necessity to, cases involving State‟s Attorney or other counsel who had referred client to, and divided fee for legal services with, the judge when the parties to the referral were in private practice.

DIGEST: Supreme Court Rule 63C(1)(c) disqualifies a judge from hearing a case in which one of the lawyers representing a party to the controversy had, within the past three years, divided fees with the judge, when the judge was in private practice, in connection with a referral made in accordance with Rule 1.5(g) of the Rules of Professional Conduct. Disqualification of all lawyers in the State‟s Attorney‟s Office is not required due to a referral made by the lawyer currently serving as State‟s Attorney. Disqualification is not overridden by the Rule of Necessity even if the judge received such referrals from most lawyers in the county where the judge is sitting.

REFERENCES: Illinois Supreme Court Rule 63C(1)(c); Illinois Supreme Court Rule 63D; Illinois Supreme Court Rule 63C(1)(c) (1987); Illinois Rule of Professional Conduct 1.5(g); Illinois Code of Professional Responsibility, Rule 2-107(a)(2) (1980); MD Electrical Contractors, Inc. v. Abrams, 228 Ill.2d 281, 888 N.E.2d 54 (2008); People v. Perkins, 229 Ill.2d 34, 890 N.E.2d 398 (2008); Metzger v. DaRosa, 209 Ill.2d 30, 805 N.E.2d 1165 (2004); Cassens Transportation Co. v. Industrial Comm’n, 218 Ill.2d 519, 844 N.E.2d 414 (2006); Corti v. Fleisher, 93 Ill.App.3d 517, 417 N.E.2d 764 (1st Dist. 1981); Holstein v. Grossman, 246 Ill.App.3d 719, 616 N.E.2d 1224 (1st Dist. 1993); Easter House v. Department of Children and Family Services, 204 Ill.App.3d 312, 561 N.E.2d 1266 (1st Dist. 1990); Luce, Forward, Hamilton & Scripps, LLP v. Koch, 162 Cal.App.4th 720, 75 Cal.Rptr.3d 869 (2008); Illinois Judicial Ethics Committee Opinion Nos. 94-18, 95-20, 98-7, 00-2; Canon 3C(1)(b), ABA Model Code of Judicial Conduct (1972); Canon 3E(1)(b), ABA Model Code of Judicial Conduct (1990).

FACTS

While in private practice, a judge had received client referrals from most of the lawyers in the county where the judge now sits. Pursuant to Rule 1.5(g) of the Rules of Professional Conduct, the referring lawyers received a portion of the legal fees earned in the representation on the basis of their assumption of “legal responsibility” for the performance of the services performed by the recipient of the referral, but were not required to provide legal services. One of the attorneys from whom the judge received such referrals was recently elected State‟s Attorney. The judge‟s monetary interest in the referred cases was terminated when the judge went on the bench. Disqualification of the judge from cases involving lawyers who had referred cases to the judge would prevent the judge from presiding over a significant portion of cases in the county where the judge is assigned. No other judge is regularly assigned to that county.

QUESTIONS PRESENTED

1. Is a judge disqualified from a case pursuant to Supreme Court Rule 63C(1)(c), on the basis of having been “associated in the private practice of law with any law firm or lawyer representing any party to the controversy,” if the judge, while in private practice within the preceding three years, had received a client referral from one of the law firms or lawyers in the case and had divided with that law firm or lawyer the legal fees earned in connection with the referral in accordance with Rule of Professional Conduct 1.5(g)?

2. If a judge is disqualified by Supreme Court Rule 63C(1)(c) from presiding over cases in which the State‟s Attorney participates, is the judge disqualified from presiding over all cases involving the State‟s Attorney‟s Office?

3. Where a judge would otherwise be disqualified from hearing most of the cases in the county to which the judge has been assigned, and no other judge is regularly assigned to that county, does the Rule of Necessity apply and, thus, permit the judge to preside over the cases from which the judge would otherwise be disqualified?

ANALYSIS

I

A. “Associated in the Private Practice of Law” Under Supreme Court Rule 63C(1)(c)

The issue whether a judge is disqualified from presiding over a case in which the judge had received a referral, when in private practice, from a lawyer or law firm representing one of the parties is governed by Supreme Court Rule 63C(1)(c). That rule provides that a judge is disqualified if:

(c) 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 (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subparagraph)….¹

The ultimate question under Rule 63C(1)(c) is whether the judge is considered to have been “associated in the private practice of law” with any law firms or lawyers from whom the judge received referrals. Viewed in isolation from the rest of the rule, the phrase “associated in the private practice of law” would not necessarily include relationships, such as referral relationships, with anyone outside of a lawyer‟s firm. Partners, associates, and other lawyers practicing together under the same law firm name are clearly associated in the private practice of law. The same would not usually be said for

lawyers who refer cases to a law firm in which they do not themselves practice. But cf. Luce, Forward, Hamilton & Scripps, LLP v. Koch, 162 Cal.App.4th 720, 734-35, 75 Cal.Rptr.3d 869, 878-79 (2008) (ethical standard requiring arbitrator to disclose if he or she was “associated in the private practice of law with a lawyer in the arbitration” is intended to apply to economic relationships with other professionals).
However, the meaning of “associated in the private practice of law” cannot be viewed in isolation from the remainder of Rule 63C(1)(c). Court rules, like statutes, must be interpreted as a coherent whole. See, e.g., MD Electrical Contractors, Inc. v. Abrams, 228 Ill.2d 281, 287, 888 N.E.2d 54, 58 (2008) (“it is not sufficient to read a portion of the statute in isolation. We must, instead, read the statute in its entirety”); People v. Perkins, 229 Ill.2d 34, 41, 890 N.E.2d 398, 402 (2008) (“When interpreting our supreme court rules, we apply the same principles of construction applicable to statutes”).
Here, our interpretation of what constitutes “associated in the private practice of law” is informed by the proviso in Rule 63C(1)(c) that defines a situation that does not constitute an association within the meaning of that rule. As noted above, a parenthetical in the rule states: “(provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subparagraph).” The familiar maxim expressio unius est exclusio alterius” (“the expression of one thing is the exclusion of another”) suggests that, by excluding referral of cases when no monetary interest was retained from an association in the practice of law, Rule 63C(1)(c) indicates that referrals when a monetary interest was retained do involve an association in the practice of law giving rise to disqualification. See, e.g., Metzger v. DaRosa, 209 Ill.2d 30, 44, 805 N.E.2d 1165, 1172 (2004) (“Where a statute lists the things to which it refers, there is an inference that all omissions should be understood as exclusions”) (citation omitted).
Indeed, if the referral of a case never constitutes an association in the private practice of law, the proviso stating that a specific type of referral was not an association would have been superfluous. Such an interpretation should be avoided. See Cassens Transportation Co. v. Industrial Comm’n, 218 Ill.2d 519, 524, 844 N.E.2d 414, 419 (2006) (a court must “construe [a] statute so that each word, clause, and sentence is given a reasonable meaning and not rendered superfluous, avoiding an interpretation that would render any portion of the statute meaningless or void”).
Under these circumstances, it appears that disqualification would be required unless the referral received by the inquiring judge from a lawyer or law firm representing a party was a referral “when no monetary interest is retained.” Here, the inquiring judge typically received referrals pursuant to Rule of Professional Conduct 1.5(g), in which the referring lawyers received a share of the legal fees without providing any legal services in the case. The following discussion first examines the history of Rule 63C(1)(c) for clues whether that rule was intended to require disqualification with respect to the kind of referrals authorized by Rule 1.5(g). Next, we analyze the nature and history of the referrals authorized by Rule 1.5(g) to determine whether they entail the retention of a monetary interest in the subject of the referral. As shown below, this analysis reveals that the drafters of Rule 63C(1)(c) added the current proviso to that rule in a manner suggesting that “associated in the private practice of law” encompasses the kind of referral relationships authorized by the legal ethics rule now contained in Rule of Professional Conduct 1.5(g), and that such referrals trigger disqualification under Rule 63C(1)(c).

B. History of Supreme Court Rule 63C(1)(c)

The American Bar Association adopted a Model Code of Judicial Conduct in 1972. The Illinois State Bar Association and the Chicago Bar Association formed a joint committee to review the ABA Code for potential adoption in Illinois. In its final report, the joint committee recommended modifying many provisions of the ABA Code, including Canon 3C(1)(b) regarding judicial disqualification. The Model Code provision simply required disqualification when the judge or a lawyer with whom the judge had practiced law had served as a lawyer in the matter now before the judge. The joint committee expanded this provision to require disqualification if the judge or a lawyer with whom the judge had practiced law had represented a party to the controversy in any matter within the previous five years. The joint committee‟s version of Canon 3C(1)(b), with additions to the ABA Model Code provision underlined and deletions struck out, required disqualification where the judge

served as a lawyer in the matter in controversy, or a private party to the controversy had regularly retained [the judge] as a lawyer within the past five years, or a lawyer with whom [the judge] previously practiced law served had during such association or within five years of its termination served as a lawyer concerning the matter….

What is significant for present purposes is that the joint committee recommendation did not include the language in current Supreme Court Rule 63C(1)(c) regarding either “associated in the private practice of law” or “referral of cases when no monetary interest was retained.” The language contained in the then-proposed rule, referencing a lawyer with whom the judge had “previously practiced law during such association,” may not have applied to referral relationships because the makers and recipients of referrals would not normally be said to have “practiced law” together.²

The joint committee issued its report to the Illinois Supreme Court in 1974. The joint committee‟s recommendations were later considered by a separate committee appointed by the Court. The Illinois Code of Judicial Conduct was ultimately promulgated by the Court on December 2, 1986. Although based on the ABA Model Code, the Illinois Code was different in a number of respects. Notably, the Illinois Code added subparagraph C(1)(c) to Canon 3. As codified in Supreme Court Rule 63C(1)(c), this new subparagraph essentially moved into a separate rule the substance of the provision that the joint committee added to ABA Canon 3C(1)(b) requiring disqualification when a judge had practiced law with a party representing one of the parties to the controversy. Rule 63C(1)(c) required disqualification if a judge:

was, within the preceding five years, associated in the practice of law with any law firm or lawyer currently representing any party in the controversy (provided that an association in a public office shall not be deemed an association within the meaning of this subsection)….

Ill. Sup. Ct. R. 63C(1)(c) (1987). Thus, the original version of Rule 63C(1)(c) adopted by the Court included language similar to the “associated in the private practice of law” provision contained in the current rule, except the word “private” was omitted. Moreover, the original version omitted any parenthetical reference to referral of cases and, instead, included a proviso stating that an “association in a public office” did not constitute being “associated in the practice of law” within the meaning of that rule.

It is questionable whether this original version of Rule 63C(1)(c) would have required disqualification of a judge who received a referral from a lawyer representing a party to a case before the judge. The Illinois Code is accompanied by “Committee Commentary” that clarifies the meaning of the Code provisions. The Committee Commentary for Rule 63C(1)(c) notes that this provision was modified from the ABA Canons in accordance with the substance of the joint committee‟s recommendations:

[A] new subparagraph, C(1)(c), was added in 1986 regulating disqualifications when one of the parties is represented by an attorney with whom the judge was formerly associated and when one of the parties was a client of the judge. These modifications were in substantial accord with the joint committee recommendations.

It is doubtful that the Committee Commentary would have stated that this original version of Rule 63C(1)(c) was “in substantial accord with the joint committee recommendations” if the rule expanded disqualification to situations involving lawyers who had previously referred cases to the judge.
However, the original version of Rule 63C(1)(c) was amended shortly after it became effective. Along with the rest of the Illinois Code of Judicial Conduct, that rule first became effective on January 1, 1987. Less than six months later, on June 12, 1987, subparagraph C(1)(c) was amended to require disqualification if a 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 (provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection)….

The revised Rule 63C(1)(c) contained three changes from the original rule.³ First, it reduced, from five to three years, the length of time in which the situations covered by the rule requires disqualification. Second, in what appears to have been a non-substantive editorial change, it added the word “private” to practice of law, and thereby eliminated the need for the parenthetical explanation that “association in a public office” is not covered by the rule. Third, and most significantly for current purposes, it added the parenthetical proviso clarifying that “referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection.”

Unfortunately, no Committee Commentary illuminated the intent behind the third revision. To understand the apparent meaning of the revised rule, it is necessary to examine the types of permissible referral arrangements in Illinois and the extent to which they involve retention of a monetary interest in the referred case. The following discussion reveals that the proviso in Rule 63C(1)(c) does not encompass a type of referral authorized in Illinois and few, if any, other states, i.e., a referral in which legal fees are divided between the referring and receiving lawyers without the referring lawyer being required to work on the case (an “Illinois Fee Split”). By indicating that certain other types of referral arrangements do not constitute being “associated in the private practice of law,” the proviso in Rule 63C(1)(c) reveals that the parties to an Illinois Fee Split are associated in the private practice of law, thereby triggering disqualification when one of those parties appears as counsel in a case before the judge.

C. Referrals in Connection with an “Illinois Fee Split” Entail the Retention of a Monetary Interest in the Subject of the Referral

When the joint committee submitted its report in 1974, Illinois law prohibited a referring lawyer from sharing in the legal fees generated on a case when the lone “service” rendered by the referring lawyer was the referral of the case. Legal fees could only be divided among lawyers who shared responsibility for working on the case. See Corti v. Fleisher, 93 Ill.App.3d 517, 523-32, 417 N.E.2d 764, 770-75 (1st Dist. 1981).

That changed with the adoption of the Illinois Code of Professional Responsibility in 1980. In a departure from the ABA Model Code of Professional Responsibility, Illinois Rule 2-107(a)(2) authorized what we are calling the “Illinois Fee Split.” That rule authorized the division of legal fees between the maker and recipient of a referral if, among other things:

the division is made in proportion to the services performed and responsibility assumed by each, except when the primary service performed by one lawyer is the referral of the client to another lawyer and (a) the receiving lawyer fully discloses that the referring lawyer has received or will receive economic benefit from the referral and the extent and basis of such economic benefit and (b) the referring lawyer agrees to assume the same responsibility for the performance of the services in question as if he were a partner of the receiving lawyer.…

See Holstein v. Grossman, 246 Ill.App.3d 719, 732-33, 616 N.E.2d 1224, 1233 (1st Dist. 1993) (explaining rationale for Illinois Fee Split); IJEC Opinion No. 94-18 (addressing judge‟s ability to receive referral fee based on Illinois Fee Split).⁴

The Illinois Fee Split involves one of the three kinds of referral relationships recognized by Illinois law. In the second kind of relationship, both the referring lawyer and the recipient of the referral provide legal services in connection with the representation. With the client‟s informed written consent (also a requirement for an Illinois Fee Split), legal fees may be divided “in proportion to the services performed and responsibility assumed by each” lawyer. Rule 2-107(a)(2) of the Illinois Code of Professional Responsibility (1980); current Rule 1.5(g) of the Illinois Rules of Professional Conduct. 

In the third kind of referral relationship, the referring lawyer neither provides legal services nor shares in the legal fees. This kind of pure referral, with no strings attached, appears to be the kind of “referral of cases when no monetary interest was retained” referenced in the proviso to Supreme Court Rule 63C(1)(c). This is the kind of referral that would not constitute being “associated in the private practice of law” within the meaning of Rule 63C(1)(c).

An Illinois Fee Split arrangement, on the other hand, clearly entails a referral where a monetary interest was retained by the referring lawyer. The inference that an Illinois Fee Split relationship constitutes being associated in the private practice of law—and thereby triggers disqualification under Rule 63C(1)(c)—is reinforced by the requirement for an Illinois Fee Split that “the referring lawyer agrees to assume the same legal responsibility for the performance of the services in question as would a partner of the receiving lawyer.” Illinois Rule of Professional Conduct 1.5(g)(2). It is sensible to treat the parties to an Illinois Fee Split as if they were partners in a law firm, for purposes of disqualification under Supreme Court Rule 63C(1)(c), when the referring lawyer has agreed to assume the same legal responsibility as a partner of the receiving lawyer for the performance of the services in question.
Does it make a difference, in terms of disqualification, that the referring lawyers might be said to have been the parties to the referrals who “retained” a monetary interest in the subject of the referral? The Committee believes the answer is no. The proviso in Rule 63C(1)(c)—“provided that referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subsection”—fails to state that it is limited to referrals when no monetary interest was retained by the judge. Moreover, it takes two parties to “associate.” It would be illogical to construe “associated in the private practice of law” under Rule 63C(1)(c) to apply only to a referring lawyer and not the recipient of the referral. In any event, given that the judge was being compensated for providing legal services in the case, it cannot fairly be said that the judge did not retain any monetary interest in the referred cases. This is true even if, as here, the judge‟s monetary interest was terminated when the judge went on the bench. Under Rule 63C(1)(c), what matters is that the case before the judge involves a lawyer or law firm that was a party to a referral of a case, within the previous three years, in which a monetary interest was retained at the time of the referral.
Accordingly, the Committee concludes that, absent remittal of disqualification pursuant to Supreme Court Rule 63D, a judge is disqualified from a proceeding in which one of the parties is represented by a lawyer or law firm that, within the previous three years, was a party to an Illinois Fee Split agreement with the judge when the judge was in private practice.⁵

II

A judge who would be disqualified pursuant to Supreme Court Rule 63C(1)(c) due to a referral made by the lawyer now serving as State‟s Attorney is not thereby disqualified from presiding over cases handled by other lawyers in the State‟s Attorney‟s Office. In IJEC Opinion No. 98-7, the Committee concluded that a judge was not disqualified in a case where an Assistant State‟s Attorney was representing the People even though the State‟s Attorney had been employed by the judge in private practice within the past three years. See also IJEC Opinion No. 95-20 (judge who was previously an assistant public defender is not disqualified from hearing cases where the public defender‟s office represents a defendant so long as the judge did not act as counsel in that case).
Of course, it is customary for the name of the State‟s Attorney to appear in all pleadings filed by the State‟s Attorney‟s Office. For purposes of Rule 63C(1)(c), however, a State‟s Attorney is not considered to be representing a party to a case unless he or she personally participates in that proceeding. Absent such personal participation, the State‟s Attorney‟s nominal involvement would not give rise to disqualification.

III

The Rule of Necessity is an ancient common-law doctrine that permits a judge to preside over a case from which the judge would otherwise be disqualified. Smith v. Department of Registration & Education, 412 Ill. 332, 342, 106 N.E. 2d 722 (1952); Board of Education of Community Consolidated High School District No. 230 v. Illinois Educational Labor Relations Board, 165 Ill.App.3d 41, 48, 518 N.E. 2d 713 (4th Dist. 1987). Because of the concern of biased adjudication, however, the rule applies only when the interested judge‟s inability to hear the case would leave the parties without any means of redressing their claim. Smith, 412 Ill. at 342. Accordingly, “if there is anyone else who can act” in place of the interested judge, the Rule of Necessity does not apply. Id.; Board of Education of Community Consolidated High School District No. 230, supra, 165 Ill.App.3d at 48. See also Easter House v. Department of Children and Family Services, 204 Ill.App.3d 312, 316, 561 N.E.2d 1266 (1st Dist. 1990) (“Since there is someone else who could have acted in the interested official‟s place, the rule of necessity is not applicable”).

Here, the Rule of Necessity does not obviate the need for the judge to disqualify himself even though disqualification would be required in a significant number of cases and no other judge sits full-time in that county. Inconvenience—even great inconvenience—is insufficient to invoke the Rule of Necessity. Moreover, the Rule is generally applied in a single case and under exigent circumstances, not on a regularly basis to a great many cases. Accordingly, as long as the judge continues to be assigned to the county where disqualification is frequently required, many cases will have to be assigned to another judge.

OPINION

Supreme Court Rule 63C(1)(c) disqualifies a judge from hearing a case in which one of the lawyers representing a party to the controversy had, within the past three years, divided fees with the judge, when the judge was in private practice, in connection with a referral made in accordance with Rule 1.5(g) of the Rules of Professional Conduct. Disqualification of all lawyers in the State‟s Attorney‟s Office is not required due to a referral made by the lawyer currently serving as State‟s Attorney. Disqualification is not overridden by the Rule of Necessity even if the judge received such referrals from most lawyers in the county where the judge is sitting and no other judge is assigned full-time to that county.

---------------------------------------------------------------------------------------- Footnotes --------------------------------------------------------------------

¹ The catchall disqualification provision in Supreme Court Rule 63C(1), requiring disqualification where the “judge‟s impartiality might reasonably be questioned,” is inapplicable to circumstances, like this, involving one of the situations addressed by the specific disqualification provisions contained in Rules 63C(1)(a) through (e). See Illinois Judicial Ethics Committee (IJEC) Opinion No. 94-18, fn. 2 (where “the potential ground for disqualification…is addressed in a specific subparagraph to Illinois Supreme Court Rule 63C(1) and there are no other reasons to question the judge‟s impartiality, the general language of the introduction to that Rule, requiring disqualification under circumstances „where the judge‟s impartiality may reasonably be questioned,‟ does not mandate disqualification”); accord, IJEC Opinion No. 00-2.

² Both the 1972 and 1990 versions of the ABA Model Code of Judicial Conduct require disqualification if a lawyer for one of the parties had “practiced law” with the judge when the lawyer was representing the party in that controversy. See ABA Model Code of Judicial Conduct, Canon 3C(1)(b) (1972); ABA Model Code of Judicial Conduct, Canon 3E(1)(b) (1990). This Committee is unaware of any authorities suggesting that the term “practiced law,” as used in those Canons, encompasses referral relationships.

³ The quoted language is identical to the current rule, except the word “subsection” has been replaced by “subparagraph.”

⁴ In 1990, the Illinois Code of Professional Responsibility was replaced by the Illinois Rules of Professional Conduct. The Illinois Fee Split rule has been moved, virtually verbatim, to Rule 1.5(g) of the Rules of Professional Conduct.

5 This inquiry does not raise the question whether a traditional division of legal fees, in which the fees are divided in proportion to the services performed and the responsibility assumed by each lawyer, would give rise to disqualification under Supreme Court Rule 63C(1)(c). The Committee expresses no opinion on that question.