Opinion 23-231

February 1, 2024

Facts/Issue:    The inquiring judge has been assigned a personal injury case, in which the defendant is currently represented by a lawyer and law firm whose participation presents no conflicts for the judge.  However, the judge knows that judge’s former law partner had previously served as counsel in this specific case while they were associated in the practice of law.  The substitution of counsel relieving the judge’s former law partner happened over a year ago, and before the judge assumed the bench.  The judge never participated in the case and has no extra-judicial knowledge of it.  On these facts, the judge asks if it is ethically permissible to preside in the matter.

Discussion:     Section 100.3(E)(1)(b)(ii) requires a judge to disqualify in a proceeding where “the judge knows that … (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter.” 

                      However, disqualification on this basis is subject to remittal under Section 100.3(F).  As set forth in our opinions, remittal is a multi-step process that requires full disclosure on the record of the basis for disqualification and the voluntary affirmative consent of the parties and their counsel.

Conclusion:     A judge is disqualified, subject to remittal, from a case in which the judge’s former law partner previously served as counsel while in partnership with the judge.

Authorities:    Opinions 00-59; 21-22(A).