Can a lawyer confer with a judge about the case of the judge's spouse, when the judge has no official role in that case?

Plain-English summary

A circuit court judge's wife brought a post-dissolution enforcement action against her former husband, who in turn initiated a contempt proceeding against her. While these matters were pending, the judge conferred with his wife's attorney about her case. The case was pending in the county where the judge presided, but it was not pending before the judge, and he had no official relationship to it. The inquiry asked whether it was improper for the judge to confer with his wife's attorney, and whether it was improper for the attorney to confer with the judge.

On the judge's conduct, the opinion concluded the question arose only because the spouse was a judge, and that there is nothing unethical in an attorney for one spouse conferring with the client's spouse where the couple are not adversaries. The opinion reasoned that under the Illinois Code of Judicial Conduct (Rule 62A and B, requiring conduct promoting public confidence in the judiciary and barring family influence on judicial conduct, and Rule 65, minimizing conflict with judicial duties), a judge is not required to be impartial in a personal or family matter, and that the judge here was not in conflict with his judicial duties.

On the attorney's conduct, the opinion concluded that Rule 3.5(i) of the Illinois Rules of Professional Conduct bars communicating on the merits with a judge before whom the proceeding is pending, but because the judge had no official relationship to his spouse's case, the spouse's attorney was not violating Rule 3.5.

Currency note

This opinion was issued in 1993, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (pointing to Rule 3.5(b)), while noting 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 Treat this page as historical context, not current guidance.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 lawyer talk to a judge about the judge's spouse's case?

A: The opinion concluded this is not improper where the judge has no official relationship to the case and it is not pending before him, so his relationship to it is purely personal.

Q: Does this violate the ex parte communication rule?

A: No. The opinion concluded Rule 3.5(i) bars communicating on the merits with a judge before whom the proceeding is pending, and that rule was not triggered because the judge had no official role in the case.

Q: Must the judge stay impartial about a family member's case?

A: The opinion concluded a judge is not required to be impartial in a personal or family matter, so long as the judge is not allowing family to influence his judicial conduct and is not in conflict with his judicial duties.

Background and rules framework

The opinion interpreted Rule 3.5(i) of the Illinois Rules of Professional Conduct (barring communication on the merits with a judge before whom a proceeding is pending), read together with the Illinois Code of Judicial Conduct Rules 62 and 65 (Model Rule 3.5, impartiality and decorum of the tribunal).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 (impartiality and decorum; ex parte communication) / Illinois Rule 3.5(i) (now 3.5(b))
• Illinois Code of Judicial Conduct, Rules 62A and B, Rule 65

See also

• ISBA Ethics Op. 93-12: Ex Parte Emergency Relief
• ISBA Ethics Op. 94-07: Drafting an Order Ex Parte

Source

• Landing page: https://www.isba.org/ethics/opinions/9221