Opinion 06-14

March 9, 2006

Please Note: This opinion has been modified by Opinion 17-03 as follows: “The Committee finds that the best approach here is to require disclosure in lieu of disqualification. Unless the judge believes he/she cannot be impartial, he/she need not recuse in the first instance when a private law firm representing a defendant in the child’s lawsuit appears before him/her but must fully disclose the representation. If a party objects, the judge has full discretion about whether or not to recuse under the circumstances. If any party appears without counsel, the judge must disqualify him/herself. The requirement continues until the child’s lawsuit ends…. Opinions 91-52 and 06-14 are hereby modified to be consistent with this result.”  Please consult the Committee for further guidance concerning when the obligation terminates, as Opinion 17-03 was subsequently amended on this point by Opinion 20-63.

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) Assuming a judge feels that he or she can be impartial, and is willing to preside, the judge should disclose to the parties in a proceeding that an attorney appearing in the matter also represents the defendants in the civil action filed by the cooperative of which the judge is a proprietary lessee and, if a party objects, the judge should exercise recusal. (2) A judge need not conduct an investigation to determine if a party appearing before him or her is insured by the same company that is a defendant in a civil action filed by a cooperative of which the judge is a proprietary lessee.

Rules:          Judiciary Law §14; 22 NYCRR 100.2(A); 100.3(E)(1); Opinion 91-52 (Vol. VII).

Opinion:

         A judge is a proprietary lessee of a cooperative that has filed an action in the judge’s court against the cooperative’s “insurer, an engineering firm and its insurance broker.” The judge intends to recuse himself/ herself from any action in which a party or parties is represented by the same attorneys retained by the cooperative to prosecute the action. In addition, the judge intends to recuse himself/herself in an action where the defendants in the cooperative’s civil action are named parties.

         The judge asks (1) whether he/she should disclose to the parties in any action before the judge that the attorneys representing a party also represent the defendants in the cooperative’s civil action; and, (2) the extent to which the judge must determine whether a party in any action before the judge is insured by the same insurer that is a defendant in the cooperative’s civil action.

         Neither Judiciary Law §14 nor section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates recusal under the circumstances described by the inquiring judge. Nevertheless, a judge must avoid both impropriety and the appearance of impropriety [22 NYCRR 100.2(A)], and must disqualify himself or herself in any proceeding where the judge’s impartiality might reasonably be questioned. 22 NYCRR 100.3(E)(1).

         In Opinion 91-52 (Vol. VII), this Committee concluded that a judge need not exercise recusal in a case where one of the attorneys from a firm representing the defendant in a malpractice action filed by the judge appeared in another matter as long as the judge believed that he or she could be impartial. The Committee did, however, advise that

 “. . . the judge must disclose this information to all parties where these attorneys are involved. If any party objects to the judge’s presiding over the matter, the judge should recuse himself or herself. Disclosure should continue to be made until the disposition of the malpractice case.”

         We thus conclude that in the present inquiry, if the judge believes that he can be impartial, and is willing to preside, he or she should disclose to the parties in a proceeding that an attorney appearing in the matter also represents the defendants in the civil action filed by the cooperative of which the judge is a proprietary lessee and, if a party objects, the judge should exercise recusal.

         In addition, the judge need not conduct an investigation to determine if a party appearing before him or her is insured by the same company that is a defendant in the cooperative’s civil action. If during the normal course of a proceeding, however, the judge learns that the defendant insurer is involved, then the judge should exercise recusal.