Opinion 10-168

October 28, 2010

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 spouse has retained counsel and is considering making a claim against a municipality for personal injuries the judge witnessed (1) must disqualify him/herself from matters wherein the spouse's attorney appears until the judge’s spouse terminates the attorney-client relationship; and (2) need not exercise disqualification from matters in which the municipality is a party unless and until his/her spouse files the notice of claim, but must then exercise disqualification from such matters from the date of filing until the judge's spouse's matter against the municipality is concluded. Remittal is available as set forth in this opinion.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 07-128; 07-206; 04-100; 04-66.

Opinion:

         A judge whose docket includes many tort actions, some involving a local municipality as a co-defendant, states that his/her spouse was recently injured in a crosswalk maintained by the same municipality. The judge's spouse has consulted an attorney and executed a notice of claim form, but has not yet decided whether to serve and file it. The judge states that even if his/her spouse files the notice of claim, the judge's only potential involvement would be as a witness to the incident, not as a party or claimant. The judge believes he/she can be impartial in unrelated matters wherein the judge's spouse's attorney appears or in which the municipality is a party, but asks whether he/she must nonetheless disqualify him/herself from such matters. If so, the judge asks whether the disqualification should commence immediately or only after the spouse files the notice of claim.

         A judge must always act to promote public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]) and must not allow family relationships to influence, or appear to influence, his/her judicial conduct or judgment (see 22 NYCRR 100.2; 100.2[B]). Therefore, a judge must disqualify him/herself in any proceeding where the judge's impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal where permitted (see 22 NYCRR 100.3[F]; see also"Remittal," infra).

Matters Involving the Judge's Spouse's Attorney

         The Committee previously has advised that a judge is disqualified from presiding when an attorney who is currently representing the judge's close relative appears in the judge's court (see Opinion 07-128 [analyzing prior opinions]). Here too, because the judge's spouse has retained counsel, the judge should exercise disqualification if the judge's spouse's attorney appears before the judge (see 22 NYCRR 100.3[E][1]; Opinion 07-128). Disqualification is required for the duration of the attorney-client relationship, regardless of whether any notice of claim is filed, but is subject to remittal as long as all parties are represented by counsel (see 22 NYCRR 100.3[F]; Opinion 07-128; see also "Remittal," infra).

         For a period of two years after the attorney's representation of the judge's spouse ends, when the attorney appears before the judge and the judge can be fair and impartial, the judge must disclose fully that the attorney represented the judge's spouse. If a party thereafter objects to the judge presiding, the judge must exercise his/her discretion in determining whether disqualification is warranted (see Opinion 07-128).

Matters Involving the Judge's Spouse's Party-Opponent

         The Committee previously has advised that a judge who is a plaintiff in a civil action against a defendant whose defense is undertaken by a national insurance company is disqualified from presiding in all matters where the defending insurance company appears before the judge during the pendency of the judge's action (see Opinion 07-206). And, a judge, who is a plaintiff in a small claims action against a municipality should exercise disqualification when the municipality appears as a party during the pendency of the judge's action if the municipality's attorney so requests (see Opinion 04-66).

         According to the inquirer, the judge's spouse is not yet adverse to the municipality and will not be unless and until the spouse files a notice of claim or otherwise commences a proceeding against the municipality. Thus, at this time, while the judge's spouse is deciding whether to file the notice of claim, the judge need not disqualify him/herself from matters involving the municipality as long as the judge believes he/she can be fair and impartial.

         However, if and when the judge's spouse files a notice of claim or otherwise commences a proceeding against the municipality, the judge should exercise disqualification in all matters in which the municipality is a party, until the judge's spouse's matter is concluded (see 22 NYCRR 100.3[E][1]; Opinions 07-206; 04-66). This disqualification is subject to remittal as long as all parties are represented by counsel (see 22 NYCRR 100.3[F]; Opinion 07-206; see also "Remittal," infra).

         For a period of two years after the matter is concluded, when the municipality appears before the judge, assuming the judge believes he/she can be fair and impartial, the judge must fully disclose that his/her spouse brought a personal injury claim against the municipality. If a party objects to the judge presiding, the judge must exercise his/her discretion in determining whether disqualification is warranted (see Opinion 07-206).

Remittal

         Remittal is not permitted where any party is self-represented (see Opinion 04-100) or where the judge (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter or has been a material witness concerning it; or (3) knows that the judge or his/her spouse, or one of their relatives within the sixth degree of relationship, or the spouse of such a person, is a party to the proceeding (see 22 NYCRR 100.3[F]).

         Assuming all parties who have appeared and not defaulted are represented by counsel and the judge believes he/she can be fair and impartial, a judge may permit the parties and their counsel to initiate remittal of disqualification by fully "disclos[ing] on the record the basis of the judge's disqualification" (22 NYCRR 100.3[F]). The agreement to remit disqualification must be made by the parties and their counsel "without participation by the judge," and “shall be incorporated in the record of the proceeding” (id.). Thereafter, if the judge continues to believe that he/she will be impartial and is willing to participate, the judge may preside in the proceeding (see id.).