Opinion No. 03-04

September 19, 2003

TOPIC: State’s Attorney threatens to file a motion for substitution of judge in every future case before a judge unless the judge increases the defendant’s sentence in a particular pending case.

DIGEST: Judge must take or initiate "appropriate disciplinary action," such as contempt proceedings, but is not necessarily required to report to the ARDC a State’s Attorney who threatens to file substitution of judge motions in every criminal case before that judge unless the judge increases the sentence imposed on a particular defendant. However, uncertainty regarding this conclusion in light of a recent Supreme Court decision may make it prudent for the judge, out of an abundance of caution, to report lawyer to the ARDC even if that action is not required.

REFERENCES: Illinois Supreme Court Rule 63B(3); Illinois Rule of Professional Conduct (RPC) 8.4; RPC 8.4(a)(3); RPC 8.4(a)(4); RPC 8.4(a)(5); Weglarz v. Bruck, 128 Ill.App.3d 1, 470 N.E.2d 21 (1st Dist. 1984); People v. Totten, 118 Ill.2d 124, 514 N.E.2d 959 (1987); In re Corboy, 124 Ill.2d 29, 45, 528 N.E.2d 694, 701 (1988); People ex rel. Baricevic v. Wharton, 136 Ill.2d 423, 556 N.E.2d 253 (1990); People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231 (1990); People v. Camden, 210 Ill.App.3d 921, 569 N.E.2d 312 (5th Dist. 1991); SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill.App.3d 979, 619 N.E.2d 1282 (1st Dist. 1993); In re Smith, 168 Ill.2d 269, 659 N.E.2d 896 (1995); In re Estate of Rennick, 181 Ill.2d 395, 692 N.E.2d 1150 (1998); Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 730 N.E.2d 4 (2000), aff’g in part & rev’g in part, 303 Ill.App.3d 27, 708 N.E.2d 1177 (1st Dist. 1999); People v. Maggette, 195 Ill.2d 336, 747 N.E.2d 339 (2001); In re Estate of Ahmed, 322 Ill.App.3d 741, 750 N.E. 2d 278 (1st Dist. 2001); 735 ILCS 5/114-5; IJEC Opinion No. 93-1; IJEC Opinion No. 94-10; IJEC Opinion No. 95-10; IJEC Opinion No. 95-17; IJEC Opinion No. 96-13; IJEC Opinion No. 99-6;. Canon 3B(3) of the ABA Model Code of Judicial Conduct (1972) & Commentary thereto; Section 3D(2) of the ABA Model Code of Judicial Conduct (1990) & Commentary thereto.

FACTS

An Assistant State’s Attorney was unhappy with a sentence imposed by a judge. The elected State’s Attorney subsequently threatened in open court to file substitution of judge motions in all future criminal matters assigned to that judge unless the judge changed the sentence in that case.

QUESTION PRESENTED

Whether the judge has a duty to report to the Attorney Registration and Disciplinary Commission (ARDC) or take other disciplinary action against a State’s Attorney who threatens to file substitution of judge motions in all criminal cases before a judge unless the judge changes the sentence imposed in a particular case?

ANALYSIS

The threshold issue raised by this inquiry is whether the actions of the State’s Attorney violated the Rules of Professional Conduct. The Committee believes that the answer to this question is "yes," and that the State’s Attorney’s actions therefore triggered the judge’s own ethical obligation, under Supreme Court Rule 63B(3), to take or initiate appropriate disciplinary measures. The basis for these conclusions, and the nature of the "appropriate disciplinary measures," are explained below.

I. WHETHER THE STATE’S ATTORNEY’S THREAT VIOLATES THE RULES OF PROFESSIONAL CONDUCT

In a criminal matter, the State and defendant each possess one motion for substitution of judge (SOJ) pursuant to 735 ILCS 5/114-5. The party filing such a motion is usually able to obtain another judge without proving prejudice on the part of the judge with respect to whom the motion is filed. See People ex rel. Baricevic v. Wharton, 136 Ill.2d 423, 430, 556 N.E.2d 253, 256 (1990).

It is one thing for the State to exercise its statutory right to file an SOJ motion. It is quite another thing, however, for the State to threaten to exercise that right to try to coerce a judge to change a ruling.

Rule 8.4(a)(5) of the Rules of Professional Conduct (RPC) prohibits lawyers from taking actions that are "prejudicial to the administration of justice." Legitimate advocacy does not include threatening a judge with actions in other cases calculated to subject the judge to public embarrassment, ridicule, or opprobrium. Here, the State’s Attorney unabashedly used the threat of future SOJ motions--a threat which, if carried out, would publicly label the judge as "soft" on crime--to try to pressure the judge to change a ruling in a particular case. This went beyond merely indicating that SOJ motions would be filed in all future cases, without intending to influence the judge’s ruling in a particular case. By pressuring the judge to change a ruling on the basis of considerations unrelated to whether that ruling comported with the facts or the law, the State’s Attorney engaged in conduct prejudicial to the administration of justice in violation of RPC 8.4(a)(5). Cf. In re Smith, 168 Ill.2d 269, 285-88, 659 N.E.2d 896, 903-04 (1995) (lawyer’s conduct impeding prompt and correct decision of case violated RPC 8.4(a)(5))./

II. NATURE OF THE JUDGE’S ETHICAL RESPONSIBILITY TO RESPOND TO THE STATE’S ATTORNEY’S VIOLATION OF THE RULES OF PROFESSIONAL CONDUCT

The State’s Attorney’s violation of RPC 8.4(a)(5) triggers the judge’s own ethical obligations. Supreme Court Rule (SCR) 63B(3) provides that:

"A judge having knowledge of …a violation of Rule 8.4 of the Rules of Professional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures." (Emphasis added.)

One manner for the judge to discharge this responsibility would be to report the State’s Attorney to the ARDC. The more difficult question, however, is whether the judge is ethically required to take that action.

This Committee has frequently wrestled with a judge’s responsibility to take or initiate appropriate disciplinary measures. See, e.g., Illinois Judicial Ethics Committee (IJEC) Opinion Nos. 93-1 (judge is not required to report to ARDC a lawyer who engaged in brief and general ex parte communication about impending case); 94-10 (judge need not report to ARDC lawyer found in criminal contempt for refusing to try case unless permitted to question prospective jurors during voir dire); 95-10 (judge is required to report to ARDC lawyer-witness who testified to use of cocaine); 95-17 (judge’s duty to report to ARDC lawyer-defendant convicted of battery depends on whether conviction reflects adversely on the lawyer’s fitness to practice); 96-13 (judge need not report to ARDC lawyer who violated Consumer Installment Loan Act); 99-6 (judge should report to ARDC lawyer who filed forged document).

The continuing viability of these Committee opinions warrants reconsideration in light of the recent decision by the Illinois Supreme Court in Skolnick v. Altheimer & Gray, 191 Ill.2d 214, 730 N.E.2d 4 (2000). Skolnick addressed a lawyer’s ethical obligation, under RPC 8.3(a), to report knowledge of a violation of RPC 8.4(a)(3) or 8.4(a)(4) "to a tribunal or other authority empowered to investigate or act upon such violation." A lawyer, Kenneth Skolnick, and his wife sued Skolnick’s former law firm and one of its associates, Terry Robin Horwitz Kass, for allegedly wrongfully accusing him of forging a document filed with the court. When Kass obtained documents in discovery that she claimed indicated Skolnick had engaged in fraudulent conduct, she filed a motion to modify the protective order in the case to permit her to disclose the content of the documents to the ARDC. The trial court denied the motion, but the Appellate Court reversed, holding that the trial court was required to modify the protective order to permit Kass to discharge her ethical obligation to provide that information to the ARDC. Skolnick v. Altheimer & Gray, 303 Ill.App.3d 27, 30, 708 N.E.2d 1177, 1179 (1st Dist. 1999).

The Supreme Court affirmed this aspect of the Appellate Court’s ruling. The Court agreed that the documents in question gave Kass knowledge that Skolnick had committed the kind of conduct described in RPC 8.4(a)(3) and (a)(4). 191 Ill.2d at 228, 730 N.E.2d at 21. In the portion of the opinion of greatest relevance to the present inquiry, the Court rejected the Skolnicks’ argument that Kass was not required to report the alleged misconduct to the ARDC:

"Kass is correct in arguing that she was required to report the claimed misconduct to the ARDC…. Her duty to report cannot be discharged by reporting the suspected misconduct to the trial court." Id. at 229, 730 N.E.2d at 15.

Thus, Skolnick makes it clear that a lawyer’s ethical obligation under RPC 8.3(a) requires notifying the ARDC of another lawyer’s violation of RPC 8.4(a)(3) or (a)(4). The present inquiry, on the other hand, raises the issue whether a judge’s ethical obligation under SCR 63B(3) requires notifying the ARDC of a lawyer’s violation of RPC 8.4(a)(5).

A side-by-side comparison of RPC 8.3(a) and SCR 63B(3) will help answer this question by highlighting the similarities and differences between the two rules:

Rule of Professional Conduct 8.3(a)

"A lawyer possessing knowledge not otherwise protected as a confidence by these Rules or by law that another lawyer has committed a violation of Rule 8.4(a)(3) or (a)(4) shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation."

Supreme Court Rule 63B(3)

"A judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 8.4 of the Rules of Professional Conduct on the part of a lawyer shall take or initiate appropriate disciplinary measures."

Two primary differences are immediately apparent. First, while a lawyer’s duty under RPC 8.3(a) concerns another lawyer’s violation of subparagraphs (a)(3) and (a)(4) of RPC 8.4, a judge’s duty under SCR 63B(3) concerns a broader spectrum of lawyer misconduct, namely, a violation of any of the provisions of RPC 8.4. Thus, the types of misconduct for which the lawyer has a duty under RPC 8.3(a) is limited to criminal acts that reflect adversely on the offending lawyer’s honesty, trustworthiness, or fitness as a lawyer (RPC 8.4(a)(3)), or conduct involving dishonesty, fraud, deceit, or misrepresentation (RPC 8.4(a)(4)). A judge’s duty under SCR 63B(3) encompasses those kinds of lawyer misconduct, as well as violations or attempted violations of any Rules of Professional Conduct (SCR 8.4(a)(1)), inducing or assisting another in violating the RPC (SCR 8.4(a)(2)), engaging in conduct prejudicial to the administration of justice (SCR 8.4(a)(5)), and a variety of other misconduct listed in SCR 8.4(a)(6)-(9).

The second primary difference between RPC 8.3(a) and SCR 63B(3) concerns the nature of the requisite response to knowledge of a lawyer’s misconduct. RPC 8.3(a) states that a lawyer with knowledge, unprotected by the attorney-client privilege, of another lawyer’s violation of the relevant rules "shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation." As explained above, Skolnick teaches that this requires lawyers to report such knowledge to the ARDC.

SCR 63B(3), on the other hand, states that a judge with knowledge of the specified kinds of lawyer misconduct "shall take or initiate appropriate disciplinary measures." Thus, rather than imposing an inflexible duty to "report" misconduct, SCR 63B(3) appears to give judges two choices, either to "take" or "initiate" appropriate disciplinary measures. See generally People v. Maggette, 195 Ill.2d 336, 350, 747 N.E.2d 339 (2001) ("A court should construe a statute, if possible, so that no term is rendered superfluous or meaningless"); In re Estate of Rennick, 181 Ill.2d 395, 404, 692 N.E.2d 1150 (1998) ("In interpreting a supreme court rule, we apply the same principles of construction that apply to a statute"). "Take" and "initiate" appear to mean different things. A judge would seem to "take" disciplinary measures by personally imposing discipline on the lawyer, as by disqualifying a lawyer who has violated a rule against conflicts of interest or by holding in contempt a lawyer who has embarrassed, hindered, or obstructed a court in its administration of justice, derogated from its authority or dignity, or brought the administration of justice into disrepute. See, e.g., SK Handtool Corp. v. Dresser Industries, Inc., 246 Ill.App.3d 979, 989, 619 N.E.2d 1282, 1289 (1st Dist. 1993) (court has authority to disqualify law firm subject to conflict of interest); Weglarz v. Bruck, 128 Ill.App.3d 1, 470 N.E.2d 21 (1st Dist. 1984) (lawyer held in contempt for declaring intention to disregard court’s ruling). On the other hand, a judge would normally "initiate" disciplinary proceedings by reporting a lawyer to the ARDC or, perhaps, by issuing an order to show cause, to be decided by another judge, regarding whether a lawyer should be held in contempt. See, e.g., People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231 (1990) (trial judge issued order to show cause re contempt and referred case to chief judge for reassignment).

However, Skolnick raises doubt whether SCR 63B(3) permits a judge to take any action in lieu of reporting the offending lawyer to the ARDC. In the following passage, the Court suggests that only it has the power to "discipline" lawyers and that trial courts are required to report lawyer misconduct to the ARDC:

"In Illinois, only this court possesses the ‘inherent power to discipline attorneys who have been admitted to practice before it.’… The court, in turn, has delegated the authority to investigate and prosecute claims of attorney misconduct to the ARDC.… Further, while a trial court bears an independent responsibility to report attorney misconduct to the ARDC (155 Ill. 2d R. 63(B)(3)), only this court may discipline an attorney found guilty of ethical misbehavior." 191 Ill.2d at 229, 730 N.E.2d at 15 (emphasis added; citations omitted).

Could the Court really mean that SCR 63B(3) invariably requires judges to report attorney misconduct to the ARDC? One indication that it might mean just that is its favorable citation, in the same paragraph as the passage quoted above, of the Appellate Court’s decision in People v. Camden, 210 Ill.App.3d 921, 569 N.E.2d 312 (5th Dist. 1991). That case involved an appeal from an order fining a state’s attorney $1 for ex parte communications with the defendant’s physicians. The fine was purportedly imposed pursuant to SCR 63B(3) and was not accompanied by a contempt citation. The Appellate Court vacated the fine:

"[T]his sanction ordered by the trial judge was an impermissible infringement on the exclusive power of the supreme court, acting through the Attorney Registration and Disciplinary Commission (ARDC), to adjudicate attorney disciplinary matters. Disciplinary proceedings and sanctions for unprofessional conduct are exclusively within the province of the supreme court.… The ARDC acts as the agent of the supreme court in administering the disciplinary functions that have been delegated to it.… Attorney disciplinary proceedings are conducted by the ARDC completely separate and apart from the judicial proceedings in which the attorney misconduct was alleged to have occurred.… Accordingly, any sanctions based on alleged professional misconduct must be addressed by the ARDC and not by the trial court, as in the instant case." Id. at 926, 569 N.E.2d at 315 (emphasis added).

Despite language in Skolnick and Camden suggesting that SCR 63B(3) invariably requires judges to report attorney misconduct to the ARDC, a number of considerations weigh against that conclusion:

First, that interpretation violates the interpretive maxim, referenced above, indicating that "take" and "initiate" should be given different meanings.

Second, that interpretation conflicts with the natural meaning of the phrase "appropriate disciplinary measures" because it suggest that there is only one appropriate measure, namely, reporting wrongdoing attorneys to the ARDC.

Third, it would be anomalous to give judges a broader duty than lawyers to report misconduct to the ARDC, especially since judges can punish misconduct by utilizing powers of contempt and disqualification that lawyers do not possess. In this regard, it bears emphasizing that a judge’s duty under 63B(3) extends to, inter alia, lawyers’ violations of RPC 8.4(a)(1) and, therefore, to every violation of the Rules of Professional Conduct, including rules governing conflicts of interest, fee-sharing, contingent fee agreements, conflict rules, ex parte communications, and many other provisions proscribing conduct that (unlike RPC 8.4(a)(3) & (a)(4)) is not malum in se.

Fourth, interpreting SCR 63B(3) to apply to judges’ knowledge of all violations of the RPC would conflict with most judges’ understanding and practice. It is questionable, for example, whether judges routinely report to the ARDC lawyers who are found to violate a conflict of interest rule.

Fifth, the Model Code provision from which SCR 63B(3) was derived permits, but does not invariably mandate, judges to report misconduct to an attorney disciplinary body. Canon 3B(3) of the ABA’s 1972 Model Code of Judicial Conduct (1972) provides that "[a] judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware." (Emphasis added.) The Commentary to that provision states that "[d]isciplinary measures may include reporting a lawyer’s misconduct to an appropriate disciplinary body." (Emphasis added.) This implies that appropriate disciplinary measures do not necessarily require reporting misconduct to a lawyer disciplinary agency. See generally In re Estate of Ahmed, 322 Ill.App.3d 741, 746, 750 N.E. 2d 278, 281 (1st Dist. 2001) ("As a rule of statutory construction, the word ‘may’ is permissive, as opposed to mandatory").

Sixth, the 1990 ABA Model Code of Judicial Conduct makes it even more clear that judges are not required to report all lawyer misconduct to the lawyer disciplinary agency. In a provision that appears intended to clarify, but not substantively change, the provision from the 1972 Model Code quoted in the preceding paragraph, Section 3D(2) of the 1990 Code provides:

"A judge having knowledge that a lawyer has committed a violation of the Rules of Professional Conduct should take appropriate action. If the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, the judge shall inform the appropriate authority."

The Commentary to this provision expressly acknowledges that judges are sometimes permitted to take action other than reporting lawyers’ misconduct to the lawyer disciplinary agency. "Appropriate action may include direct communication with the judge or lawyer who has committed the violation, other direct action if available, and reporting the violation to the appropriate authority or other agency or body."

On balance, the Committee believes that SCR 63B(3) does not invariably require judges to report lawyer misconduct to the ARDC. This conclusion is supported by the Committee Commentary to SCR 63B(3), which expressly states that "[w]here misconduct by an attorney is involved, the finding of contempt may, in appropriate circumstances, constitute the initiation of appropriate disciplinary measures." This is not to say, however, that a contempt finding is always appropriate or sufficient. The Committee believes that judges should report misconduct to the ARDC in any of the following situations:

1. The lawyer violated RPC 8.4(a)(3) or (a)(4), i.e., if the misconduct involves (i) a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, or (ii) conduct involving dishonesty, fraud, deceit, or misrepresentation. See IJEC Opinion No. 95-17 (criminal offense should be reported to ARDC if it reflects adversely on lawyer’s fitness to practice).

2. The misconduct, even if not criminal, raises a substantial question as to the lawyer’s fitness as a lawyer in other respects. Cf. Section 3D(2) of the ABA Model Code of Judicial Conduct (1990).

3. No other disciplinary measures are available. See IJEC Opinion No. 95-10 (reporting misconduct to ARDC is warranted if "no other actions are even arguably ‘appropriate’").

The fact that a judge should report lawyer misconduct to the ARDC in the three situations listed above does not necessarily mean that a judge must do so. The kind of line-drawing implicit in that list--i.e., identifying certain kinds of misconduct for which reporting the lawyer to the ARDC is warranted--is not based on any language in SCR 63B(3) itself. It is inappropriate to subject judges to discipline for failing to adhere to standards absent from the rule. Cf. In re Corboy, 124 Ill.2d 29, 45, 528 N.E.2d 694, 701 (1988) (holding that lawyers did not violate RPC where "[t]hey acted without the guidance of precedent or settled opinion"). Moreover, SCR 63B(3) confers discretion on judges to determine what disciplinary measures are "appropriate." Unless the meaning of SCR 63B(3) is clarified by the Supreme Court, the Courts Commission, or future amendment, a judge’s good-faith exercise of discretion by taking or initiating disciplinary measures other than reporting misconduct to the ARDC, even if later determined to be erroneous, should not expose the judge to prosecution for violating his or her ethical duties./

Turning to the facts of this inquiry, the misconduct in question does not violate RPC 8.4(a)(3) or (a)(4). Assuming that this appeared to be an isolated incident of threatening behavior, the misconduct would not necessarily reflect on the State’s Attorney’s fitness as a lawyer in other respects. Moreover other appropriate measures are available, such as issuing an order to show cause re contempt to be decided by another judge. See, e.g., People v. Ernest, 141 Ill.2d 412, 566 N.E.2d 231 (1990). Accordingly, the Committee believes the judge is not required to report the lawyer to the ARDC and, instead, could initiate other appropriate disciplinary measures. Cf. IJEC Opinion No. 94-10 (judge need not report to ARDC lawyer who engaged in conduct prejudicial to administration of justice by refusing to try case unless permitted to question prospective jurors).

CONCLUSION

Supreme Court Rule 63B(3) requires the trial court to take appropriate disciplinary measures against the State’s Attorney, but does not necessarily require reporting the lawyer to the ARDC. However, uncertainty regarding the meaning of this Rule may make it prudent for the judge, out of an abundance of caution, to notify the ARDC even if that action is not required.