Opinion No. 04-01

June 15, 2004

Topic: Judge attends a meeting at school regarding harassment of his children and a child living temporarily with judge’s family and attends an informal appeal. He writes to request the appointment of a neutral to resolve problems between child and school, mentioning his employment as a judge.

Digest: A judge may attend a meeting regarding harassment of his children and a special education child living temporarily with judge’s family and may attend the informal appeal. A judge may write a letter seeking the appointment of a neutral with regards to these matters, mentioning in his description of his background the fact that he is a judge.

Reference: Tierney v. Vahle, 304 F.3d 734 (7th Cir. 2002); In re Associate Judge Arthur Rosenblum, 3 Ill. Cts. Com. 9, 30-31 (1993); Illinois Supreme Court Rules 62B, 65F; 23 Ill. Admin. Code §§ 226.75 and 226.210 (k); Illinois Judicial Ethics Committee Opinions 95-16, 95-19, 98-4; Commentary to Canon 4 G, ABA Model Code of Judicial Conduct (1990); Shaman, Lubet, Alfini, Judicial Conduct and Ethics, § 7.21 p. 233 (1997).

FACTS

A special education child has been living with a judge’s family for sixteen months. The special education child’s mother is a friend of the judge’s family. The mother asked the judge to let her special education child stay with the judge’s family because of problems that have arisen at the special education child’s home.

The special education child was harassed and threatened by other students at school. The judge’s children attempted to confront the harassers. The school commenced disciplinary proceedings regarding these incidents. The special education child’s mother asked the judge to attend disciplinary sessions regarding the child. The judge has attended these sessions including an informal appeal meeting. The judge also wrote a letter asking for a neutral to be appointed to help resolve these difficulties. The letter contained a description of his background including a reference to his judicial office. The judge did not use judicial letterhead.

QUESTIONS

Whether a judge’s attendance at school meetings, including the appeal hearing, regarding his children and a child living temporarily at this home amounts to the improper practice of law?

Whether the judge’s letter to a school asking for the appointment of a neutral arbitrator stating that he is a judge as part of his description of his background amounts to improper use of the judicial office to advance private interests?

OPINION

The Judge’s Attendance at School Meetings Regarding the Judge’s Children

A judge has the right to participate in the education of his or her minor children and to attend all meetings related to disciplinary proceedings against the judge’s children or where the judge’s children’s rights are implicated. Parents stand in close legal relationship with their minor child; the law treats their interests as identical in most proceedings. Cates v. Cates, 156 Ill. 2d 76, 104-105; 619 N.E.2d 715 (1993) (barring lawsuits by children against their parents for conduct inherent in the parent-child relationship). Courts "should afford protection to conduct inherent to the parent-child relationship…." Id. (in the context of parent-child tort immunity). A judge in this context acts not as a lawyer or judge, but as a parent. Becoming a judge does not require the judge to abdicate his or her parental authority and responsibility.

A judge may not practice law. Illinois Supreme Court Rule 65F. Thus, a judge may not negotiate a disputed claim on behalf of an adult son because it constitutes the practice of law. Illinois Judicial Ethics Committee Opinion 95-19. Negotiation, however, on behalf of a minor child does not amount to the practice of law. Cf. Illinois Judicial Ethics Committee Opinion 95-19; see also Illinois Judicial Ethics Committee Opinions 95-16 (where a judge is representing his or her own interests, that judge may appear pro se in any proceedings).

Negotiation with an insurance company in the context of a dispute falls within practice of law. It would, however, appear less certain whether participation in a school meeting regarding your own children could ever amount to the practice of law. But, clearly, participation in a school meeting regarding your own minor children certainly does not. A judge, therefore, has right to participate in all school meetings regarding his or her minor children including informal appeals from disciplinary actions.

The Judge’s Attendance at School Meetings Regarding the Special Education Child

With respect to the special education child: the judge acts as a parent with respect to any child that is living temporarily with the judge for whom the judge is responsible. See 23 Ill Admin. Code § 226.75 (2003) (definition of "parent" includes any person acting in place of the parent and any person who is legally responsible). Moreover, at the discretion of the parent any individual with knowledge shall participate in a conference regarding a special education child. See 23 Ill Admin. Code § 226.210 (k). Because the mother asked the judge to participate, his participation in the meeting is authorized pursuant to the statute. He appears, not as a representative or advocate, but as a person with knowledge.

Moreover, he apparently falls within the Code’s definition of parent. As stated above, attending meetings on behalf of your children does not amount to the practice of law. Because the judge legally stands as this child’s parent or as a person with knowledge whose presence is required at these meeting, his presence does not amount to the improper practice of law.

Thus, it is permissible for the judge to attend a meeting regarding disciplinary issues regarding his or her children and the special education child that lives with him.

The Judge’s Letter to the School Stating his Judicial Office

The judge also sent a letter to the school where the judge mentioned his judicial office among a list of other credentials in a letter urging the school to appoint a neutral to mediate the dispute. The judge did not use judicial letterhead.

A judge may not lend prestige of judicial office to advance private interests. Illinois Supreme Court Rule 62B. A judge may not exploit the prestige of the judicial office to advance the interests of the judge’s family. IJEC Opinion No. 98-4 (citing Commentary to Canon 4 G. of the ABA Model Code of Judicial Conduct (1990); Shaman, Lubet, Alfini, Judicial Conduct and Ethics, § 7.21 p. 233 (1997)).

While it may be inadvisable for a judge to tell others in the midst of litigation or other contested matter that he or she is a judge, that alone does not amount to a violation of Rule 62B. In re Associate Judge Arthur Rosenblum, 3 Ill. Cts. Com. 9, 30-31 (1993) (use of the judicial letterhead in correspondence in the midst of a criminal proceeding and termination of a lease against judge’s tenant insufficient to show that judge attempted to exploit his position as a judge); cf. Tierney v. Vahle 304 F.3d 734, 741 (7th Cir. 2002) (a letter on judicial stationery was clearly written as a father rather than in any judicial capacity and did not threaten the invocation of judicial power).

The mere mention that he holds judicial office without more does not violate Rule 62B. The judge describes his legal background, including his service as a judge, in a letter asking that a neutral be appointed. There is no hint that he is attempting to bully or threaten the school by using his judicial office. Rather, he is reciting his experience in the legal profession to bolster his argument for a neutral to be appointed. He appeals to the school that based on his experience such an appointment would be appropriate. There is no implication that because I am a judge, you must appoint a neutral or I demand the appointment of a neutral. Moreover, he is clearly writing in his "capacity as a father rather than as a judge." Tierney 304 F.3d at 741.

The judge’s statement in the letter regarding his judicial experience does not violate Rule 62B.