Opinion No. 03-05

October 23, 2003

Topic: Duty of judge to disqualify himself or herself when a litigant is represented by a lawyer who, in an unrelated proceeding, represents all Illinois judges in a class action lawsuit concerning judicial compensation.

Digest: Assuming, without deciding, that Rule 63C(1) disqualifies a judge from hearing cases in which a party is represented by a lawyer who concurrently represents all Illinois judges in an unrelated class action suit, the judge may nonetheless, under the "rule of necessity," preside over matters in which the attorney appears.

References: Illinois Supreme Court Rule 63C(1); Illinois Judicial Ethics Committee Opinion Nos. 94-18, 95-2, 95-5, 96-20 and 98-17; U.S. v. Will, 449 U.S. 200, 101 S. Ct. 471 (1980); In Re BellSouth Corp., 334 F.3d 941 (11th Cir. 2003); Williams v. U.S., 240 F.3d 1019 (Fed. Cir. 2001); Jefferson County v. Acker, 92 F.3d 1561 (11th Cir. 1996) reversed and remanded, 527 U.S. 423, 119 S. Ct. 2069 (1999); Duplantier v. U.S., 606 F.2d 654 (5th Cir. 1979); Pilla v. American Bar Association, 542 F.2d 56 (8th Cir. 1976); Texaco v. Chandler, 354 F.2d 655 (10th Cir. 1965); Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003); Berry v. Berry, 765 So.2d 855 (Fl. Ct. App. 2000); Reilly v. Southeastern, 489 A.2d 1291 (Pa. 1985); Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983); Olson v. Cory, 609 P.2d 991 (Cal. 1980); Lena v. Commonwealth, 340 N.E.2d 884 (Mass. 1976); Abramson, Appearance of Impropriety: Deciding When a Judge’s Impartiality "Might Reasonably Be Questioned," 14 Geo. J. Legal Ethics 55 (2000); Shaman, Lubet and Alfini, Judicial Conduct and Ethics, sec. 4.03, p. 112 (3rd ed. 2000); Canon 3E(1) of the 1990 ABA Model Code of Judicial Conduct and accompanying Commentary; ABA Informal Ethics Opinion 1477 (1981); Alabama Judicial Inquiry Commission Opinion, Nos. 95-581 and 96-597; Michigan Bar Standing Committee on Ethics Opinion JI-39 1991).

FACTS

Two judges have filed a lawsuit on their own behalf and on behalf of all Illinois judges seeking a declaration that salary adjustments are being unconstitutionally withheld from members of the plaintiff class. The class has been certified. A judge who is a member of the class, but not a named party, has been assigned several cases unrelated to the class action in which one or more of the lawyers representing a party are counsel for the judges in the class action suit.

QUESTION

Is a judge who is an unnamed member of a class comprising all Illinois judges disqualified when class counsel for the judges appears before the judge in an unrelated matter?

OPINION

Illinois Supreme Court Rule 63C(1) provides that a judge shall disqualify himself or herself from a proceeding if "the judge’s impartiality might reasonably be questioned." Subparagraphs (a) through (e) of Rule 63C(1) describe specific situations where partiality, or at least the appearance of partiality, is presumed mandating disqualification. Disqualification is required under Subparagraph (a) if the judge has a "personal bias or prejudice concerning a party or party’s lawyer." If after a subjective review of his or her "emotions and conscience," the judge determines that personal bias or prejudice exists, the judge is disqualified. Where the judge harbors no personal bias or prejudice disqualification is still required if under an objective appraisal of the case-specific facts, the "judge’s impartiality might reasonably be questioned." See Lena v. Commonwealth, 340 N.E.2d 884, 886-87 (Mass. 1976) and Illinois Judicial Ethics Committee (IJEC) Opinion No. 95-5. Here, there are no facts indicating bias or prejudice on the part of the judge and the only case-specific information relevant to disqualification is the fact that the attorney appearing before the judge also represents all Illinois judges in an unrelated class action.

This Committee has previously determined that where a lawyer is representing a judge in a divorce proceeding the judge is disqualified from hearing other cases in which the attorney appears because, under the circumstances, "the judge’s impartiality might reasonably be questioned." IJEC Opinion No. 95-2. Courts in other jurisdictions have reached a similar conclusion in cases where a private attorney represents a judge in a personal legal matter. See, e.g., Texaco v. Chandler, 354 F.2d 655 (10th Cir. 1965) (judge disqualified in cases involving a lawyer who represents the judge as a defendant in a $10,000,000 defamation suit); Berry v. Berry, 765 So.2d 855 (Fl. Ct. App. 2000) ("judge had affirmative duty to disqualify himself or, at the very least, to make a disclosure to the parties regarding his attorney-client relationship with the husband’s attorney") and Powell v. Anderson, 660 N.W.2d 107 (Minn. 2003) (appellate judge disqualified because attorney representing a trust of which the judge was a trustee also represented a party in an unrelated appellate matter). Also see, Michigan Bar Standing Committee on Ethics Opinion JI-39 (1991) (judge disqualified from cases involving attorney who also represents the judge in a legal malpractice action).

For the purpose of this opinion the Committee assumes, without deciding, that the judge is disqualified under Rule 63C(1) from presiding over any case in which a party is represented by an attorney representing the statewide class of judges.

The "rule of necessity" provides that notwithstanding a judge’s personal or financial interest in a case, it is the judge’s duty to preside over the matter if the case cannot otherwise be heard. U.S. v. Will, 449 U.S. 2000, 101 S. Ct. 471, 480, 66 L. Ed.2d 392 (1980). In other words, "where all judges are disqualified, none are disqualified." Pilla v. American Bar Association, 542 F.2d 56, 59 (8th Cir. 1976). The rule of necessity overrides disqualification provisions found in judicial codes of conduct. See U.S. v. Will, supra, 101 S. Ct. at 480 (rule prevails over disqualification statutes and traditional judicial canons of ethics); Williams v. U.S., 240 F.3d 1019, 1025 (Fed. Cir. 2001) (disqualification statute "does not alter the rule of necessity"); In Re BellSouth Corp., 334 F.2d 941, 957, fn. 7 (11th Cir. 2003) ("Even where recusal would be otherwise statutorily mandated, a judge may sit under the rule of necessity") and Commentary to Canon 3E(1) of the 1990 ABA Model Code of Judicial Conduct ("By decisional law, the rule of necessity may override the rule of disqualification"). Under the rule, judges have been required to decide cases in which they have an obvious and significant disqualifying personal or pecuniary interest including cases involving judicial compensation. See, e.g., U.S. v. Will, supra; Williams v. U.S., supra; Duplantier v. U.S., 606 F.2d 654 (5th Cir. 1979); Hudson v. Johnstone, 660 P.2d 1180 (Alaska 1983); and Olson v. Cory, 609 P.2d 991 (Cal. 1983).

The rule of necessity is equally applicable in situations where the judge has no direct personal or financial interest in the matter litigated but is disqualified because of the judge’s relationship with an attorney. Authorities considering the issue have concluded that the rule permits a judge to hear cases involving a lawyer who also represents the judge as a member of a class. In Reilly v. Southeastern, 489 A.2d 1291, 1295 (Pa. 1985), the court held that the fact that the lawyer representing all Pennsylvania judges in a judicial compensation class action appeared before state judges in unrelated matters "did not require the trial judge to recuse himself because of the rule of necessity." In so holding the court commented:

To agree with [the party suggesting recusal] would force the [judges’ attorney] to forego trial practice in Pennsylvania. Superior Court itself would have to recuse in this case. Only those judges coming to the bench after the [judges’ class action] decision would not have to recuse themselves. No lawyer should be compelled to suffer such a disaster because of his pro bono representation of all the jurists in Pennsylvania.

Also see, Shaman, Lubet and Alfini, Judicial Conduct and Ethics, sec. 4.03, p.112 (3rd ed. 2000), citing Reilly for the proposition that, "Necessity will also override disqualification where an attorney represents all judges in a class action seeking increased judicial compensation."

American Bar Association Informal Ethics Opinion No. 1477 (1981), also specifically recognizes that any disqualification required by the fact that a judge’s attorney appears before the judge in an unrelated case must yield to the rule of necessity.

We also recognize that courts have pronounced a "rule of necessity" to the effect that a judge is not disqualified to try a case because of his personal interest in the matter at issue if no other judge is available to hear the case… The rule could apply, for example, when a private lawyer with special expertise is called upon to represent a court or a judicial system in a matter pertaining to judicial salaries or pensions…

Also see, Tennessee Judicial Ethics Committee Opinion No. 97-2 (if disqualification is required because an attorney appearing before a judge has been retained by the Tennessee Judicial Conference as a lobbyist, the rule of necessity becomes operable precluding the need for recusal).

Assuming that the inquiring judge is disqualified under Rule 63C(1) from cases involving an attorney who also represents the judge as a class member, then all Illinois judges are disqualified and the rule of necessity applies. Pursuant to the rule, the inquiring judge is permitted to preside over cases unrelated to the class action in which an attorney for the class appears.

The question remains whether the judge should inform attorneys and parties in unrelated cases that the judge is a member of a class that is being represented by an attorney appearing in the unrelated cases.

It is clear that the Illinois Code of Judicial Conduct "does not contain a recommendation, let alone a requirement, that judges disclose information regarding disqualification." IJEC Opinion Nos. 94-18 and 96-20. However, the Committee has repeatedly counseled that disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. See, e.g., IJEC Opinion Nos. 94-18 and 98-17. The rationale for this advise is that disclosure, in appropriate situations, (1) fosters public confidence in the judiciary by eliminating any suggestion that a judge concealed information relevant to the disqualification issue and (2) allows the parties to preserve the disqualification issue for appeal. Id.

Although an argument could be made that because the rule of necessity "operates as an exception to the requirement of impartiality" (Shaman et al, supra, sec. 4.03 at p. 112), disclosure in the present context is of little value, the Committee believes that disclosure, while not required, is advisable. Even though the circumstances presented here cannot defeat the rule of necessity, disclosure will serve to promote public confidence in the judiciary by openly setting forth the relevant facts. This is especially important where the disclosed facts relate to the judge’s relationship with a party’s attorney and indirectly involve a lawsuit concerning judicial compensation.