Opinion 09-141

June 3 - 4, 2009

Digest:         A judge whose insurance company has assigned a law firm to litigate a case involving the judge must disqualify him/herself when the litigating attorney, another attorney assisting the litigating attorney, or the litigating attorney’s partners and associates appear in the judge’s court. The judge’s disqualification is subject to remittal.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.(3)(F); Joint Opinion 08-171/08-174; Opinion 07-206

Opinion:

         A judge advises that his/her insurance company has assigned a law firm to litigate a case involving the judge. The judge further advises that he/she does not know which law firm the insurance company assigned to litigate the case, but could learn the identity of the law firm if he/she contacts the insurance company. Nevertheless, the judge asks whether he/she must disqualify him/herself when a member of the law firm appears in the judge’s court on an unrelated matter.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s 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]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee previously has advised that a judge must disqualify him/herself, subject to remittal, when the same company that insures the defendant in the judge’s personal civil action appears in the judge’s court on unrelated matters because the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]; 100.3[F]; Opinion 07-206). The Committee is of the view that the inquiring judge’s impartiality also might reasonably be questioned were he/she to knowingly preside when a member of the law firm the insurance company assigned to litigate a case involving the judge appears in the judge’s court.

         Of course, as the judge in the present inquiry does not know which law firm the insurance company assigned to litigate the judge’s case, he/she cannot disqualify him/herself when necessary. However, in the Committee’s view, the judge can easily determine the name of the law firm by contacting the insurance company. Doing so will ensure that the judge disqualifies him/herself when necessary and will avoid any factual dispute that might arise concerning the judge’s knowledge about an attorney appearing before him/her and that attorney’s association with the judge’s insurance company.

         The Committee also has advised that a judge must disqualify him/herself from presiding when an attorney who is representing the judge in a personal legal matter, an attorney who is assisting the judge’s attorney in such representation, or the attorney’s partners or associates appear in the judge’s court, subject to remittal if the judge believes he/she can be fair and impartial and is willing to disclose fully the fact and nature of the representation (see 22 NYCRR 100.3[E][1]; Joint Opinion 08-171/08-174). Once the representation is concluded, the judge must continue to disqualify him/herself for a period of two years whenever the attorney who represented him/her or an attorney who assisted the judge’s attorney in such representation appears in the judge's court, again subject to remittal if the judge believes he/she can be fair and impartial and is willing to fully disclose the fact and nature of the representation (see Joint Opinion 08-171/08-174). During the same two-year period, when the judge's personal attorney's partners and associates who had no involvement in the judge’s representation appear, if the judge is willing to preside, he/she must fully disclose the fact and nature of the representation. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion (see id.). When more than two years has elapsed since the representation was concluded, if the judge is willing to preside, the judge must fully disclose the fact and nature of the representation when the attorney who represented the judge or an attorney who assisted the judge’s attorney in such representation appears. If a party objects to the judge’s continued participation in the case, whether to exercise recusal is solely within the judge’s discretion (see id.). And, if the attorney’s partners or associates who had no involvement in the judge’s representation appear more than two years after the representation is concluded, the judge may, but is not required to, disclose that the representation occurred, and whether to exercise recusal is solely within the judge’s discretion (see id.).

         The judge in the present inquiry also should be guided by the rules of disqualification set forth in Joint Opinion 08-171/08-174 once he/she identifies the lawyer the insurance company assigned to litigate the judge’s case.