Opinion 96-18

September 16, 1996 

TOPIC: Disqualification, former co-counsel and relative as lawyer. 

DIGEST: 1. A judge need not disqualify himself or herself from a case where the lawyer representing one of the parties referred business to the judge when the judge was in practice and tried two cases with the judge as co-counsel two years prior to the judge being appointed to the bench; 

2. Whether the judge is required to disqualify himself or herself from a case where the judge's daughter is an associate in the firm representing one of the parties depends upon whether the judge's daughter is acting as a lawyer in the proceeding and whether the daughter has more than de minimis interest that could be substantially affected by the proceeding. 

REFERENCES: Illinois Supreme Court Rules 63C(1)(a), (b), (c), (d) and (e)(ii), (iii) of the Code of Judicial Conduct, Canon 3 (145 Ill. 2d R. 63); Committee Comments to Illinois Supreme Court Rule 63C(1)(d) and (e); Illinois Judicial Ethics Opinion Nos. 93-10 and 94-18; Terminology Section, Code of Judicial Conduct. 

FACTS 

The judge makes inquiry regarding the duty to disqualify in two separate cases with separate factual scenarios: 

1. One of the parties in a case before the judge is represented by a lawyer who referred business to the judge before the judge was appointed to the bench and with whom the judge served as co-counsel in two trials at least three years before the case at issue came before the judge. In the two trials with the lawyer, both the judge and the lawyer represented the same client but were paid separately by the client for their work. 

2. The judge's daughter is a first year associate in a law firm which represents a party in a case before the judge. The daughter is not counsel in the case before the judge and is in fact assigned to a different division of the law firm than the lawyers from the firm appearing before the judge in the case at issue. 

QUESTION 

Is the judge is required to disqualify himself or herself in each of the cases? 

OPINIONS 

The answer to these inquiries regarding disqualification is controlled by Illinois Supreme Court Rule 63C(1) and the relevant sub-parts. The Rule provides, in pertinent part: 

(1) A judge shall disqualify himself or herself in a proceeding where the judge's impartiality might reasonably be questioned, including but not limited to instances where: 

(a) the judge has a personal bias or prejudice concerning a party or the party's lawyer; 

(b) 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 controversy (provided that the referral of cases when no monetary interest was retained shall not be deemed an association within the meaning of this subparagraph); 

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(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: 

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(ii) is acting as a lawyer in the proceeding; 

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

As to the first inquiry, disqualification is not required by the Rules. The judge was a solo practitioner and had no business relationship with the lawyer other than the fact that they both represented the same client and were co-counsel in two trials. They were each paid their specific and separate attorney's fees by the client in those cases. The business that was referred by the lawyer to the judge while the judge was practicing did not involve any referral fees. Therefore, there was no "association" in the practice of law between the judge and the lawyer which would mandate disqualification pursuant to the Rules. 

As to the second inquiry, the Committee Comments to Rule 63C(1)(d) and (e) note that "the fact that a lawyer in a proceeding is affiliated with a law firm which a relative of the judge does not of itself disqualify a judge". In such a circumstance, a factual inquiry must be made to determine whether the degree of relationship between the judge and the relative and the nature of the relative's involvement in the proceeding are such that would require disqualification. In this case, it is clear that the judge's daughter is "within the third degree of relationship". As to the nature of the daughter's involvement in the case, the daughter is a first year associate in a very large law firm. The daughter is not counsel of record and is not appearing in court on the case in any capacity. In fact, the judge's daughter is assigned to a division of the law firm that has nothing to do with the type of case that is at issue before the judge. The last inquiry to be made, however, as to whether the daughter has more than a "de minimis" interest that could be substantially affected by the proceeding is more difficult because of the vague definition of "de minimis" provided by the Terminology Section of the Code of Judicial Conduct. That Section of the Code defines "de minimis" as "denoting an insignificant interest that could not raise reasonable question as to the judge's impartiality." 

In an opinion previously issued by the Illinois Judicial Ethics Committee, No. 94-18, the Committee noted that with regard to whether a relative's interest in a particular proceeding is sufficient to require disqualification, a judge should consider the following factors: 

1. The nature of the case, in particular its financial or other impact on the relative's law firm; 

2. The relative's position in the firm as partner, shareholder, associate, or of counsel; and 

3. The size of the law firm. 

In an instance such as this, where the judge's daughter is a first year associate in a firm of well over 100 lawyers, the daughter's financial interest in the case would probably be considered de minimis. In this case, as in all such cases, however, the judge is required to make a reasoned assessment of the extent of the relative's interest in the case before automaticallv disqualifying himself or herself. The Committee has previously noted its concern in such a circumstance that a judge might avoid making this reasoned assessment requirement by following the disclosure and consent provision of Supreme Court Rule 63D. As the Committee previously noted in IJEC Opinion No. 94-18, "a judge who (that) permits himself or herself to be disqualified, at the determination of the parties or their lawyers, in cases where disqualification is not required by Illinois Supreme Court Rule 63C is creating an unnecessary and undesirable opportunity for forum shopping. This concern is particularly acute in smaller communities where there are fewer judges and a higher likelihood that judges may have close relatives practicing in local law firms." 

As to the related question of whether the judge is required to disclose information related to potential disqualification contained in the two scenarios set out above, judges are not required to disclose such information if they conclude that they are not disqualified. (See IJEC Opinion No. 93-10). Although the Illinois Code does not contain either a recommendation or requirement that judges disclose information regarding disqualification, the Committee herein reiterates its belief that such disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. Disclosure avoids any suggestion that the judge concealed important information regarding disqualification and allows the parties to preserve the disqualification issue for appellate review. It would be better practice for the judge to disclose his or her daughter's present employment with the firm.