Opinion No. 94-18
August 25, 1994
TOPIC: Duty of judge to disqualify himself or herself in a proceeding when a relative of the judge is associated with a law firm representing one of the parties.
DIGEST: A judge need not disqualify himself or herself when a relative within the third degree of relationship is associated with a law firm representing one of the parties so long as the relative is not acting as a lawyer in the proceeding and has only a de minimis interest that could be affected by the proceeding. Disclosure that the judge is related to a lawyer associated with a law firm representing a party is recommended, but is not ethically required.
REFERENCES: Illinois Supreme Court Rules 63C(1)(c), 63C(1)(e)(ii) and (iii) and 63D of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R. 63); Committee Comments to Illinois Supreme Court Rules 63C(1)(d) and (e); Commentary to Section 3E(1) of the ABA Model Code of Judicial Conduct (1990); Illinois Judicial Ethics Committee Opinion No. 93-10.
FACTS
When a case is called, the judge recognizes that one of the parties is represented by a law firm with which the judge's nephew is associated. The nephew is not counsel of record in the case.
QUESTION
Is a judge disqualified from hearing a case where the judge's nephew is associated with the firm representing one of the parties?
OPINION
The answer to this inquiry is controlled by Illinois Supreme Court Rule 63. Rule 63C(1)(e) provides in pertinent part:
(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
* * *
(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:
* * *
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding....
"The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not of itself disqualify a judge." Committee Comments to Illinois Supreme Court Rules 63C(1)(d) and (e). The first issue is whether the degree of relationship between the judge and the relative, and the nature of the relative's involvement in the proceeding, is such as to require disqualification under Illinois Supreme Court Rule 63C(1)(e)(ii). Here, although the judge's nephew is within the third degree of relationship,1 the nephew is not appearing in court on the case, is not counsel of record, and is not working on the case. Consequently, the judge is not disqualified under Illinois Supreme Court Rule 63C(1)(e)(ii).
The second issue is whether the relative's interest in the proceeding is sufficient to require disqualification under Illinois Supreme Court Rule 63C(1)(e)(iii). Unfortunately, the determination of whether the relative has "more than de minimis interest that could be substantially affected by the proceeding" is made difficult by a circular definition of "de minimis". The Terminology Section of the Code of Judicial Conduct defines that term as "denot(ing) an insignificant interest that could not raise reasonable question as to a judge's impartiality."
The Committee believes that judges should consider the following three factors when determining whether a relative has more than a de minimis interest that could be affected by a proceeding:
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 firm.
Obviously, if the relative is a partner in a two-person law firm, and the case could generate substantial attorneys' fees, the relative's interest is more than de minimis. On the other hand, if the relative is a beginning associate in a 200-person law firm, and the case involves a fee of only a few thousand dollars, the relative's interest is de minimis. In most cases, the facts will fall somewhere between these extremes and the judge will be required to make a reasoned assessment of the extent of the relative's interest.2
The Committee believes that judges should not avoid making this reasoned assessment regarding disqualification by following the disclosure and consent procedure of Illinois Supreme Court Rule 63D. Since a judge who follows that procedure presumably would not hear the case if the parties decline to consent, doing so in cases where the judge is not disqualified under Illinois Supreme Court Rule 63C effectively delegates to the parties and their lawyers the decision whether the judge may hear a case. That decision should rightfully be made by the judge. A judge that permits himself or herself to be disqualified, at the determination of the parties and their lawyers, in cases where such 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.
Judges are not required to disclose information pertaining to the disqualification issue if they conclude that they are not disqualified. While the Commentary to Section 3E(1) of the ABA Model Code of Judicial Conduct (1990) states that a judge "should disclose information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification," the Model Code merely recommends, but does not require, disclosure. Moreover, the absence of that Commentary from the Illinois Code of Judicial Conduct, and the inclusion with Illinois Supreme Court Rule 63 of Commentary from other provisions of Section 3E(1) of the Model Code, suggests that the Illinois Code's omission of the Commentary recommending disclosure was intentional. See IJEC Opinion No. 93-10.
Although the Illinois Code does not contain a recommendation, let alone a requirement, that judges disclose information regarding disqualification, the Committee nevertheless believes that such disclosure is the better practice if the information is relevant to a reasonable argument that disqualification is required. In the long run, disclosure of that information will promote public confidence in the judiciary by eliminating the possibility that a party or its lawyers may later discover that information and conclude that the judge had improperly failed to disqualify himself or herself. Although the parties and their lawyers may disagree with the judge's determination that disqualification is unnecessary, disclosure avoids any suggestion that the judge concealed important information regarding disqualification and enables the parties to preserve the disqualification issue for appellate review.3
CONCLUSION
The judge is not disqualified under Illinois Supreme Court Rule 63C(1)(e)(ii). The judge's disqualification under Illinois Supreme Court Rule 63C(1)(e)(iii) turns upon the application of
the three criteria described above regarding whether the nephew has more than a de minimis interest in the outcome of the proceeding. The judge should not avoid making a reasoned assessment regarding the de minimis issue by following the disclosure and consent procedures of Illinois Supreme Court Rule 63D. If disclosure is not required, it is nevertheless advisable, but not mandatory, for the judge to disclose that the judge's nephew is associated with one of the law firms in the case.
