Opinion 08-78

April 24, 2008

Please Note: Opinion 17-150 now “prohibit[s] remittal of disqualification when the judge’s first- or second-degree relative personally appears in the courtroom as a lawyer or witness. However, if the judge’s second-degree relative is involved strictly behind the scenes and is not expected to be physically present in the courtroom during the case, remittal remains available.”

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:         A judge whose sibling is an officer and Associate General Counsel and Claims Attorney for a group of member companies that provides insurance products and insurance related services under a common trade name is disqualified from presiding over matters in which the company is a party or where his/her sibling is the attorney of record. Such disqualification is, however, subject to remittal.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2 (C); 100.3(E)(1); 100.3(E)(1)(d)(ii); 100.3(E)(1)(e); 100.3(F); Opinion 92-46 (Vol. IX). 

Opinion:

         A judge whose sibling is Vice President and Associate General Counsel and Claims Attorney, for a group of member companies that provides insurance products and insurance related services under a common trade name, asks whether he/she is disqualified from presiding when any of the member companies is involved in litigation in the judge’s court.

         According to the inquiring judge, his/her sibling, as Associate General Counsel, is “. . . involved with corporate litigation (class actions, employment matters, etc.), reinsurance arbitrations, construction and leasing issues, e-discovery, policy drafting, political and governmental affairs, and various other issues, as may arise.” As Claims Attorney, the judge’s sibling is “. . . a manager of a staff of attorneys (13) that handles claims involving asbestos, hazardous waste, construction bonds, miscellaneous surety, lead paint, mold, Directors and Officers Liability, and other toxic tort claims.” Finally, the judge’s sibling’s status as Vice President relates to all the member companies.

         A judge must avoid impropriety and the appearance of impropriety in all the judges activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must not allow family relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2 [C]) and must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]). In particular, a judge must disqualify him/herself in a proceeding where the judge knows that he/she is related within the sixth degree of relationship to an officer of a party involved in a proceeding (see 22 NYCRR 100.3[E][1][d][ii]) and where the judge knows that he/she is related within the fourth degree of relationship to someone who is acting as a lawyer in a proceeding (see 22 NYCRR 100.3[E][1][e]).

         Because his/her sibling is a corporate officer, the judge in the present inquiry must disqualify him/herself in any proceeding in which a member company is a party (see 22 NYCRR 100.3[E][d][ii]; Opinion 92-46 [Vol. IX]). In addition, because the judge’s sibling is also Claims Attorney, who manages a staff of thirteen attorneys which handles various toxic tort claims, the judge also must disqualify him/herself if his/her sibling is the attorney of record in such cases (see 22 NYCRR 100.3[E][1][e]).

         Remittal of disqualification is permissible, however, in cases where a judge disqualifies him/herself pursuant to either section 100.3(E)(1)(d)(ii) or 100.3(E)(1)(e) of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[F]), unless a party is self-represented. The judge in the present inquiry, therefore, may continue to preside in such cases if he/she discloses on the record the basis of his/her disqualification and if, after such disclosure, the parties and their attorneys, without the judge’s participation, agree that the judge should not be disqualified, and the judge believes that he/she will be impartial and is willing to participate (see id.).