Lawyer participating in matters in which he served as judge

Facts

The former presiding judge ("Judge X") of a circuit court divi­sion is now a partner in a law firm which handles the type of litigation with which Judge X was involved while on the bench.

As presiding judge, X acted in an administrative capacity, in­cluding the assignment of all cases in his division. He also acted on individual cases in both non-contested and contested matters, including trials.

Questions

1. To what extent is X disqualified from involvement in matters pending before the circuit court during his term as presiding judge?
2. To what extent is his firm disqualified from involvement in matters as to which X is disqualified?

Opinion

To the extent that X participated judicially in the merits of a particular matter, including the hearing of prove-ups on default judgments, routine matters and non-contested motions, he is dis­qualified from all further involvement in that matter. Rule 9-lOl(a) states: "A lawyer shall not accept private employ­ment in a matter upon the merits of which he has acted in a judicial capacity". EC 9-3 provides similarly, although it uses the test of "substantial responsibility" rather than involvement with the merits of a case. However, judicial involvement in the merits presumably constitutes sufficient responsibility to dis­qualify X under the EC as well as the Rule.

In other matters pending during his term as presiding judge, X acted only in an administrative capacity in assigning them for handling. Rule 9-lOl(b] provides that: "***a lawyer who leaves public employment shall not appear in the capacity of a lawyer before the public body by which he was employed on a matter in which during the public employment the lawyer participated per­sonally and substantially or which was under his official respon­sibility". EC 9-3 indicates that for purposes of Canon 9, judicial office is a type of public employment.

However, the assigning of cases for handling does not appear to constitute substantial personal participation therein, or amount to official responsibility therefore, for purposes of Rule 9-lOl(b). Accordingly, X is not disqualified from involvement in such matters if he did not participate judicially in them as precluded by Rule 9-lOl(a).

It should be noted that Rule 9-lOl(b) is subject in its applica­tion to any stricter standard imposed by the court itself, and that X is also precluded from any type of employment in any matter which might involve his advocacy against any of his own rulings or work product while in office. ISBA Opinions 762 and 182.

It should also be noted that Judge X may be disqualified under Rule 5-lOl(a) where the exercise of his independent professional judgment may be affected by a matter in which he was involved while acting as a judge.

References

• Canon 9; Rules 5-lOl(a); 9-1Ol(a), (b) and (c);
• EC 9-3;
• Commentary to Rules 5-105 and 9-101
• ISBA Opinions 762 and 182.

Note

This Opinion was AFFIRMED by the Board of Governors in July 2010. Please see the 2010 Illinois Rules of Professional Conduct 1.10, 1.11, and 1.12. This opinion was affirmed based on its general consistency with the 2010 Rules, although the specific standards referenced in it may be different from the 2010 Rules. Readers are encouraged to review and consider other applicable Rules and Comments, as well as any applicable case law or disciplinary decisions.