What response did an Illinois judge owe when a prosecutor threatened future substitution motions unless a sentence changed?

Short answer The Committee found the threat prejudicial to justice and required appropriate disciplinary measures, but concluded that former Rule 63B(3) did not necessarily require an ARDC report.
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JUDICIAL-IL
Issued
September 19, 2003

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This page answers the general question as of 2003. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

After a judge sentenced a defendant, the elected State’s Attorney threatened in open court to seek substitution in every future criminal matter before the judge unless the sentence increased.

The Committee concluded that using prospective substitution motions to pressure a ruling violated then-current lawyer Rule 8.4(a)(5), which addressed conduct prejudicial to the administration of justice. Former judicial Rule 63B(3) therefore required the judge to take or initiate appropriate disciplinary measures.

The Committee concluded that an ARDC report was not necessarily required for the assumed isolated incident because another measure, such as initiating contempt proceedings, was available. It acknowledged uncertainty from the Illinois Supreme Court’s Skolnick decision and said reporting might be prudent, without making that the stated requirement.

Currency note

The Committee’s page states that this opinion interprets the 1993 Illinois Code of Judicial Conduct, which was superseded on January 1, 2023. It does not assess whether the 2023 Code changes the analysis. Verify the current Code before relying on it.

In practice

The opinion distinguished a party’s use of a substitution motion from threatening to use motions in other cases to coerce a change in a pending case.

Common questions

Q: Did the Committee find the prosecutor’s threat improper?

A: Yes. It concluded the threat violated then-current lawyer Rule 8.4(a)(5).

Q: Was the judge required to respond?

A: Yes. Former Rule 63B(3) required appropriate disciplinary measures.

Q: Was an ARDC report mandatory under the opinion?

A: The Committee concluded it was not necessarily required, while noting uncertainty after Skolnick.

Background and rules framework

The Committee applied former Illinois Supreme Court Rule 63B(3) to a violation of then-current Illinois Rule of Professional Conduct 8.4(a)(5). It discussed Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (2000), in assessing whether a report to the ARDC was mandatory.

Citations and references

  • Illinois Supreme Court Rule 63B(3); Illinois Rule of Professional Conduct 8.4(a)(5).
  • Skolnick v. Altheimer & Gray, 191 Ill. 2d 214 (2000).
  • IJEC Opinion 94-10.

See also

Source

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