After a former presiding judge enters private practice, which matters from the bench is he disqualified from handling, and does that disqualify his firm?

Plain-English summary

A former presiding judge of a circuit court division had become a partner in a law firm handling the type of litigation he had overseen on the bench. As presiding judge he had acted both administratively, including assigning all cases in his division, and judicially on individual cases, ranging from non-contested matters to trials. The committee was asked to what extent the lawyer was disqualified from matters pending during his term, and to what extent his firm was disqualified from matters as to which he was disqualified.

The committee concluded that, to the extent the lawyer participated judicially in the merits of a particular matter, including default-judgment prove-ups, routine matters, and non-contested motions, he is disqualified from all further involvement in that matter. It relied on Rule 9-101(a) ("A lawyer shall not accept private employment in a matter upon the merits of which he has acted in a judicial capacity") and on EC 9-3, which uses a "substantial responsibility" test; judicial involvement in the merits presumably constitutes responsibility sufficient to disqualify under the EC as well as the Rule.

For matters in which the lawyer acted only administratively by assigning them, the committee turned to Rule 9-101(b), which bars a former public employee from appearing before the public body where he participated personally and substantially or which was under his official responsibility, with EC 9-3 treating judicial office as public employment. The committee concluded that merely assigning cases for handling does not amount to substantial personal participation or official responsibility under Rule 9-101(b), so the lawyer is not disqualified from such matters if he did not also participate judicially in them. It added two qualifications: Rule 9-101(b) is subject to any stricter standard the court itself imposes, and the lawyer is precluded from any employment involving advocacy against his own rulings or work product while in office (citing Opinions 762 and 182). The lawyer may also be disqualified under Rule 5-101(a) where his independent professional judgment may be affected by a matter he was involved in as a judge.

Currency note

This opinion was issued in 1983, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 1.10, 1.11, and 1.12), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a former judge handle a case he decided while on the bench?

A: The opinion concluded no; under Rule 9-101(a), a lawyer is disqualified from all further involvement in any matter on whose merits he acted in a judicial capacity, including prove-ups and non-contested motions.

Q: Is the former judge disqualified from cases he only assigned administratively?

A: Not on that basis alone. The committee found that assigning cases for handling is not substantial personal participation or official responsibility under Rule 9-101(b), so the lawyer is not disqualified from those matters unless he also acted judicially on their merits.

Q: Can the former judge ever oppose his own prior rulings?

A: No. The committee said the lawyer is precluded from any employment that might involve advocacy against any of his own rulings or work product made while in office, citing Opinions 762 and 182.

Background and rules framework

The opinion applied former Illinois Code Canon 9 and Rule 9-101(a), (b), and (c) (a lawyer not accepting private employment in a matter he acted on judicially, or appearing before a body where he had substantial responsibility), Rule 5-101(a) (the lawyer's own interest affecting independent judgment), and EC 9-3 (treating judicial office as public employment). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 1.10 (imputation), 1.11 (former government officers and employees), and 1.12 (former judges and other adjudicative officers), corresponding to ABA Model Rules 1.10, 1.11, and 1.12.

Citations and references

Rules of Professional Conduct:

• Illinois Code Canon 9; Rules 9-101(a), (b), (c); Rule 5-101(a); EC 9-3; Commentary to Rules 5-105 and 9-101 (applied in the opinion)
• Illinois RPC 1.10, 1.11, 1.12 (2010 equivalents per the Board's affirmation)
• MR 1.10 (imputation of conflicts); MR 1.11 (former government officers); MR 1.12 (former judges and adjudicative officers)

Other opinions cited:

• ISBA Opinions 762 and 182: a former judge is precluded from employment involving advocacy against his own prior rulings or work product

See also

• ISBA Ethics Op. 871: Prosecutor's Private Practice
• ABA Formal Op. 509: Confidential Gov't Information
• ISBA Ethics Op. 13-07: Municipal Prosecutor and Hearing Officer

Source

• Landing page: https://www.isba.org/ethics/opinions/800