Opinion 170
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rule is 2-2.11 Recusal, Subdivisions (A)(5) and (C).)
Issue:
Must a circuit judge recuse in a civil or criminal case wherein the party or defendant is a former client of the judge? In this instance, the case involves facts or offenses which occurred after the judge took the bench.
Discussion:
Supreme Court Rule 2, Canon 3D(1)(b) requires a judge to recuse wherein the judge has served as “a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law serve during such association as a lawyer concerning the matter ....”
In the instance, the judge could not have served as “a lawyer in the matter in controversy” as the facts of the case occurred after the judge assumed the bench. Nonetheless, as stated in the commentary to Canon 3B of the Code of Judicial Conduct effective January 1, 1999: “The judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”
In the opinion of the Commission on Retirement, Removal and Discipline the judge should follow the recommendations of the commentary and disclose the prior relationship and recuse upon request of either party. In addition, while remittal of recusal is not provided for under the current Code in situations where a judge has served as a lawyer in the matter of controversy, it is allowed under Canon 3F of the Code of Judicial Conduct effective January 1, 1999.
(Date: May 6, 1998)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 170
Issue:
Must a circuit judge recuse in a civil or criminal case wherein the party or defendant is a former client of the judge? In this instance, the case involves facts or offenses which occurred after the judge took the bench.
Discussion:
Supreme Court Rule 2, Canon 3D(1)(b) requires a judge to recuse wherein the judge has served as “a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law serve during such association as a lawyer concerning the matter ....”
In the instance, the judge could not have served as “a lawyer in the matter in controversy” as the facts of the case occurred after the judge assumed the bench. Nonetheless, as stated in the commentary to Canon 3B of the Code of Judicial Conduct effective January 1, 1999: “The judge should disclose on the record information that the judge believes the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no real basis for disqualification.”
In the opinion of the Commission on Retirement, Removal and Discipline the judge should follow the recommendations of the commentary and disclose the prior relationship and recuse upon request of either party. In addition, while remittal of recusal is not provided for under the current Code in situations where a judge has served as a lawyer in the matter of controversy, it is allowed under Canon 3F of the Code of Judicial Conduct effective January 1, 1999.
(Date: May 6, 1998)