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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Illinois Legal Ethics

1.12   Rule 1.12 Former Judge or Arbitrator

1.12:100   Comparative Analysis of Illinois Rule

Primary Illinois References: IL Rule 1.12
Background References: ABA Model Rule 1.12, Other Jurisdictions
Commentary:

The closest parallel in the 1980 Code to Illinois Rule 1.12 is 1980 Rule 9-101(a), which stated that a "lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity."

This Rule parallels Rule 1.11 in almost every respect. Judges and most other adjudicative officers are government employees, and the vast majority of them are also lawyers. 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 377 (1998). The Legislative History from 1980 indicates that what is now Rule 1.12(a) was originally to have been added on to the end of Rule 1.11.

1.12:101      Model Rule Comparison

IRPC 1.12 is MR 1.12, modified as to language regarding knowledge, and by a change in IRPC 1.12(c). The MR language states that "the disqualified lawyer . . . is apportioned no part of the fee. . . .” Illinois changed this to "apportioned no specific share of the fees. . . ." In the structure of a law firm, all fees are shared to some extent, and the MR language would be impossible to administer literally.

Again, the MR used the term "screened" without definition. Look at IRPC 1.10 for a definition of the term.

1.12:102      Model Code Comparison

Paragraph (a) is substantially similar to DR 9-101(A), which provided that a lawyer "shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity." ABA Model Code of Professional Responsibility DR 9-101(A) (1983). Paragraph (a) is broader in scope, though, and it is more specific about the people to whom it applies. The Model Code had no counterpart to paragraphs (b), (c), and (d).

As for arbitrators, EC 5-20 stated that "a lawyer [who] has undertaken to act as an impartial arbitrator or mediator, . . . should not thereafter represent in the dispute any of the parties involved." ABA Model Code of Professional Responsibility EC 5-20 (1983). DR 9-101(A) did not allow consent of the parties to waive the disqualification applied to former judges, while DR 5-105(C) was similar and could be construed to permit waiver. ABA Model Code of Professional Responsibility DR 9-101(A) and DR 5-105(C) (1983).

1.12:200   Former Judge or Arbitrator Representing Client in Same Matter

Primary Illinois References: IL Rule 1.12
Background References: ABA Model Rule 1.12(a), Other Jurisdictions
Commentary: ABA/BNA § 91.4501

Although a former judge may not be a member of or affiliated with the law firm which is representing the client who formally appeared before the judge, and although the former judge may not be receiving compensation, whenever a former judge has discussions with and gives advice to the lawyer representing the client, the judge’s conduct is covered by Rule 1.12. ISBA Advisory Opinion 94-09 (September 1994), Consultation with Former Judge Regarding Case Still Pending, Illinois State Bar Association.

To the extent that a former judge 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. ISBA Advisory Opinion 800 (July 15, 1983). However, the administrative capacity of assigning of cases for handling does not appear to constitute substantial personal participation. Id.

The definition of "matter" can be found in Rule 1.11(d). A former judge may represent a client on a post-judgment matter even if the former judge rendered a ruling on the merits of that case, as long as all parties are fully notified of the judicial participation in that proceeding and consent to the judge's representation of the litigant. ISBA Advisory Opinion 90-04 (November 4, 1990), Appearance of Impropriety; Representation by Former Judge of a Party to Litigation Ruled Upon by the Judge, Illinois State Bar Association.

A former judge may represent someone in an unrelated matter, even though that person has appeared before the judge in a previous proceeding. ISBA Advisory Opinion 90-04 (November 4, 1990), Appearance of Impropriety; Representation by Former Judge of a Party to Litigation Ruled Upon by the Judge, Illinois State Bar Association.

Rule 1.12 defines the term "adjudicative officer," including such officials as judges pro tempore, referees, special masters, hearing officers and other parajudicial officers, and also lawyers who serve as part-time judges. The Rules on their face do not exclude judicial officers. See In re Dempsey, 91 Ill. Atty. Reg. & Disc. Comm. CH 221 July 12, 1993. Rule 1.12 applies to lawyers acting as judges and a lawyer who becomes a judge still has ethical responsibilities as a member of the bar. See id.

Rule 1.11 also employs the term "participated personally and substantially." See Restatement (Third) of the Law Governing Lawyers: Former Government Lawyer or Officer § 214 (Proposed Final Draft No. 1, 1996). The term "substantial" is misleading because the actual standard for substantiality is low in cases involving the remedy of disqualification of a former government lawyer or officer under Rule 1.11. See id. Decisions not to disqualify generally rest on a finding of no substantial participation, typically a lawyer who had nothing at all to do with the case. Id.

1.12:300   Negotiating for Future Employment

Primary Illinois References: IL Rule 1.12
Background References: ABA Model Rule 1.12(b), Other Jurisdictions
Commentary: ABA/BNA § 91:4001, ALI-LGL § 206, Wolfram § 8.10

There appear to be no State judicial decisions on the subject.

A judge should recuse himself when, at the very time he is to begin hearing a case, he is in negotiation - even if it is only preliminary, tentative, indirect, unintentional, and ultimately unsuccessful - with a lawyer or law firm or party in the case over his future employment upon retiring from the bench. See Pepsico v. McMillen, 764 F.2d 458 (7th Cir. 1985).

A former judge may not accept private employment in a matter upon the merits of which he acted in a judicial capacity. In re Lewis Morgan, 89 Ill. Atty. Reg. & Disc. Comm. CH 403 December 19, 1989. In In re Lewis Morgan, a judge who entered a judgment of dissolution of marriage for a couple later represented the wife in the post-decree matters of visitation rights and property division. Id. The Hearing Board found that the visitation matter and the property matter were both related to a matter in which he had acted in a judicial capacity in violation of Rule 9-101(a) of the Illinois Code of Professional Responsibility (now Rule 1.12(b)). Id. The former judge received a reprimand pursuant to Commission Rule 282. Id.

A former judge or arbitrator 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 Advisory Opinion 800 (July 15, 1983). It should also be noted that a former judge may be disqualified under Rule 1.7(b) where the exercise of his independent professional judgment may be affected by a matter in which he was involved while acting as a judge. See id. Rule 1.7(b) prohibits a lawyer from representing a client if his responsibility to a third person - in this case, the third person would be a party to a proceeding over which the former judge presided - materially limits that representation.

The Model Rules expressly address discussions or negotiations by judicial officers and law clerks in Rules 1.11(c) and 1.12, but not those by a lawyer in private practice. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-400 (1996). Rules 1.11 and 1.12 are actually more rigorous than 1.7(b), in that they define circumstances in which negotiations for new employment cannot be pursued at all. See id.

Law clerks participate in decision-making, and can be subject to similar temptation to skew the judicial process for their own future gain. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 378 (1998). Some courts impose more rigorous standards on law clerks than those in Rule 1.12, which usually apply whether or not the law clerk substantially participated in a case. See id. In a proposal of a Code of Conduct for Law Clerks, proposed Canon 3 (D), which relates to Rule 1.12(b), would require a law clerk to inform the appointing judge of circumstances which might serve as a basis for the judge's disqualification, e.g., a prospective employment relation with a law firm, association of the law clerk's spouse with a law firm or litigant, etc. See John Paul Jones, Some Ethical Considerations for Judicial Clerks, 4 Geo. J. Legal Ethics 771, 786-790 (1991).

1.12:400   Screening to Prevent Imputed Disqualification

Primary Illinois References: IL Rule 1.12
Background References: ABA Model Rule 1.12(c), Other Jurisdictions
Commentary: ABA/BNA § 91:4501, ALI-LGL §§ 203, 204, Wolfram § 7.6.4

Once a former judge or arbitrator has been disqualified because of substantial participation in the matter, the question becomes whether or not that disqualification should be imputed to others. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 381 (1998). The solution was the addition of screening procedures similar to those used for client confidentiality. See id.

The abstention of the chairman of the zoning board of appeals from a request to the zoning board made by a law firm of which the chairman was "of counsel" satisfied the requirement under Rule 1.12 for screening. See Illinois Wood Energy Partners v. County of Cook, 667 N.E.2d 477 (1st Dist. 1995). As a result, there were no grounds for the disqualification of the law firm. See id. This indicates that this Illinois state appellate court considers arbitrators on a zoning board of appeals to be non-partisan arbitrators; thus they are governed by Rule 1.12 and subject to its screening measures.

The disqualification of a former judge under Code Rule 9-101(a) (now IRPC 1.12) does not automatically result in the disqualification of his entire firm. See In re Marriage of Thornton, 486 N.E.2d 1288 (1st Dist. 1985). A judge's past activity in a dissolution of marriage action resulted in his disqualification from further activity in the case when he joined the law firm representing the husband. See id. The screening procedures the firm followed appropriately balanced the considerations of the parties by excluding the former judge, while still allowing the husband to maintain the counsel of his own choosing. See id.

Imputation will not restrict an affiliated lawyer or firm possessing no material confidential information relevant to the matter. See Restatement (Third) of the Law Governing Lawyers: Removing Imputation § 204 (Proposed Final Draft No. 1, 1996). Any confidential information communicated to the personally-prohibited lawyer will likely be insignificant because that lawyer will be subjected to screening measures designed to eliminate any involvement in the representation. See id. Such screening measures are also applied when a former judge joins a law firm, so most likely if the former judge possesses no material or confidential information about the client or case, the law firm will not be disqualified. One can assume that the former judge will be disqualified, however, given the low standard for the determination of what constitutes substantial participation.

1.12:500   Partisan Arbitrators Selected by Parties to Dispute

Primary Illinois References: IL Rule 1.12
Background References: ABA Model Rule 1.12(d), Other Jurisdictions
Commentary: ABA/BNA § 51:1501

In many private disputes, the parties themselves select the adjudicators, who are actually more like partisan lawyers than judges. See 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct 382.1 (1998). Though Rule 1.12 does not govern the partisans selected by the parties, the partisans remain subject to all other Rules . See id.

Except for in the case of a partisan arbitrator, an arbitrator is defined as a neutral person either chosen by the parties to a dispute or appointed by a court, to hear the parties' claims and render a decision. A partisan arbitrator's loyalty is to the party who selected him. This is different from a judge, whose job is to be non-partisan.

Though not governed by Rule 1.12, a partisan arbitrator should disclose any potential bias he may have prior to his selection. See Drinane v. State Farm, 606 N.E.2d 1181 (1992). If he fails to do so, any presumption of bias created by the arbitrator's negotiating with the very parties he is arbitrating may be overcome by providing sufficient evidence which demonstrates that the presumption is unwarranted. See id.

The National Academy of Arbitrators published The Code of Professional Responsibility for Arbitrators of Labor-Management Disputes in 1974 and has a committee on Ethics and Professional Responsibility which issues opinions. See Arnold M. Zack, Professional Responsibilities of Arbitrators to Themselves and the Parties, Address before the Society of Professionals in Dispute Resolution 11th Annual Conference, (October 5-7, 1983) in Ethical Issues in Dispute Resolution, 1984, at 26-28. For example, section 2(B)1 of the code states that an arbitrator must disclose current or past relationships with the parties in a proceeding, and any possible economic interest in the proceeding, before accepting an appointment. See id.