Opinion 143
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 Recusal, Subdivisions (A)(1), (2)(c), (3), and (C).)
Issue:
An associate circuit judge having probate jurisdiction, upon being appointed to the bench, sold the assets of his law practice for a fixed price, payable in monthly installments over a period of years, so his former associate. The judge also leased his office building at a fixed monthly rental to the former associate. May the judge preside over matters where the former associate or a member of his law firm is the attorney? Secondly, is the answer the same if the case involved uncontested probate matters?
Discussion:
Supreme Court Rule 2 Canon 3C(1)(d)(ii) states:
The fact that the judge continues to receive funds from his former associate for rent and for the purchase of his law practice does not by itself mean that the judge’s impartiality might reasonably be questioned. This determination must be made after assessing the facts in each case. Certainly the need for disqualification in uncontested probate matters is not as compelling as in contested cases.
Consideration must be given to whether the payments for rent and the purchase of the law practice are at a fair market value in accordance with local market conditions. That is any payment that is not within the fair market value would require the judge’s disqualification.
Additional consideration must be given to whether Canon 3C(1)(d) requires the judge’s disqualification. That Canon requires that the judge must disqualify where he has an interest that could be substantially affected by the outcome of the proceeding. Since the possibility exists that any fee generated by the former associate’s practice before the judge could be used to pay the judge for the law practice purchase or rent, there is the possibility that the judge could be substantially affected by the outcome of the proceeding. While this is remote, it is the Commission’s opinion that the judge in these cases should follow the procedure outlined in Canon 3D, “Remittal of Disqualification”, and notify the parties and their attorneys of the judge’s business relationship with his former associate.
(Dated: May 23, 1989)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 143
Issue:
An associate circuit judge having probate jurisdiction, upon being appointed to the bench, sold the assets of his law practice for a fixed price, payable in monthly installments over a period of years, so his former associate. The judge also leased his office building at a fixed monthly rental to the former associate. May the judge preside over matters where the former associate or a member of his law firm is the attorney? Secondly, is the answer the same if the case involved uncontested probate matters?
Discussion:
Supreme Court Rule 2 Canon 3C(1)(d)(ii) states:
A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned ...
The fact that the judge continues to receive funds from his former associate for rent and for the purchase of his law practice does not by itself mean that the judge’s impartiality might reasonably be questioned. This determination must be made after assessing the facts in each case. Certainly the need for disqualification in uncontested probate matters is not as compelling as in contested cases.
Consideration must be given to whether the payments for rent and the purchase of the law practice are at a fair market value in accordance with local market conditions. That is any payment that is not within the fair market value would require the judge’s disqualification.
Additional consideration must be given to whether Canon 3C(1)(d) requires the judge’s disqualification. That Canon requires that the judge must disqualify where he has an interest that could be substantially affected by the outcome of the proceeding. Since the possibility exists that any fee generated by the former associate’s practice before the judge could be used to pay the judge for the law practice purchase or rent, there is the possibility that the judge could be substantially affected by the outcome of the proceeding. While this is remote, it is the Commission’s opinion that the judge in these cases should follow the procedure outlined in Canon 3D, “Remittal of Disqualification”, and notify the parties and their attorneys of the judge’s business relationship with his former associate.
(Dated: May 23, 1989)