Opinion No. 95-19

October 12, 1995

TOPIC: Judge acting as legal advisor for an immediate family member.

DIGEST: A judge may not act as a legal advisor for an immediate family member in negotiating with a third party.

REFERENCES: Illinois Supreme Court Rules 65D, E and F of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R. 65).

FACTS

A judge's adult son has State medical insurance through COBRA as a result of formerly being the judge's dependent. The insurance carrier refuses to provide services per its contract for insurance, and the judge wishes to point out to the carrier its duties under the Insurance Act and the possible sanctions that could result from refusal to meet those obligations.

QUESTION

May the judge act as legal advisor to the judge's son in dealing with the insurance carrier?

OPINION

The judge may not represent a member of the judge's immediate family in negotiating a legal matter with a third party. Supreme Court Rule 65 sets out the limits of the judge's ability to offer legal advice. Subsection F states: "A judge should not practice law." No exception is made for family members.

This committee's opinion No. 94-2 adopted the Black's Law Dictionary definition of the "practice of law" as "the rendition of services requiring the knowledge and the application of legal principles and technique to serve the interests of another with his consent... An attorney engages in the 'practice of law' by...counseling clients in legal matters." Dealing with a third party on behalf of an immediate family member comes within that definition. Even if the judge's participation was characterized as mediation or arbitration, the activity would be prohibited under Subsection E. Similarly, Subsection D allows a judge to serve an immediate family member as a fiduciary in only certain specified capacities. A judge's acting on behalf of a member of the judge's family in a legal matter, involving a third party would constitute the practice of law.

If the judge's son were still a minor, the insurance policy in question would be that of the judge, and the judge would be within the Code of Judicial Conduct to negotiate with the insurance company. Moreover, the Code is not violated by incidental discussion of legal matters with close family members whether minors or not.