Opinion 10-192

December 9, 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:         (1) A judge whose caseload consists mostly of matters in no-fault insurance cases involving small monetary values need not disqualify him/herself from cases in which a law firm that employs his/her child and serves exclusively as in-house counsel for an insurance company appears, as long as the judge’s child had no direct or indirect involvement in the particular case, but must disclose his/her child’s employment and thereafter has the discretion to grant or deny a party’s request for his/her recusal. (2) Given the facts presented, a judge, whose caseload consists mostly of matters in no-fault insurance cases involving small monetary values is not required to disqualify him/herself from such cases when a law firm that also serves exclusively as in-house counsel for the same insurance company, but does not employ the judge’s child, appears.

Rules:          22 NYCRR 100.0(D)(5); 100.2; 100.2(A); 100.2(B); 100.2(C);100.3(E)(1);100.3(E)(1)(d)(iii); 100.3(E)(1)(e); 100.3(F); Opinions 09-04; 06-111; 05-86; 96-42 (Vo. XIV); 90-94 (Vol. VI); 91-125 (Vol. VIII); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         A judge, whose caseload consists mostly of “motions and trials in no-fault cases in which medical providers claim first party benefits against an insurance company,” asks whether disclosure or disqualification is required when the law firm that employs the judge’s child who is awaiting admission to the bar and is in-house counsel for an insurance company which appears in the judge’s court. According to the judge, the law firm has assured the judge’s child that he/she will not work on any matters that would be heard within the jurisdiction of the judge’s court. The judge further advises that the client insurance company pays his/her child’s salary.

          A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In particular, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned, including where the judge knows that a person within the fourth degree of relationship to him/her is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or where the judge knows that a person within the sixth degree of relationship to him/her has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][iii]).

         Because a child is a parent’s first degree relative, a judge must disqualify him/herself when the judge’s child appears in the judge’s court (see 22 NYCRR 100.3[E][1][e]) or when the judge’s child has had any direct or indirect involvement in a matter in the judge’s court (Opinions 06-111; 05-86; 96-42 [Vol. XIV]). However, if the judge believes that he/she can be impartial and is willing to disclose his/her child’s involvement in the matter, and all parties are represented by counsel, the parties may remit the judge’s disqualification (see 22 NYCRR 100.3[F]; Opinions 06-111; 90-94 [Vol. VI]).

         Similarly, the Committee previously has advised that the second degree of kinship denotes an intimate and significant family connection so that a judge must disqualify him/herself when other attorneys from the same law firm as the judge’s 2^nd degree relative appear in the judge’s court (see Opinion 06-111; see also Opinions 91-125 [Vol. VIII] [judge must disqualify him/herself in any proceeding where a private law firm that employs the judge’s daughter-in-law appears in the judge’s court, even if the daughter-in-law is a law school graduate who is awaiting admission to the bar]; 09-04 [once a law firm employs a law school graduate full-time, he/she is a member of the firm who shares in the firm’s income]).

         However, under the circumstances presented here, the nature of the claims that come before the inquiring judge as well as the judge’s child’s status with his/her law firm warrants a different result when attorneys from the same law firm that employs the inquiring judge’s child appear in the judge’s court.

         According to the inquiring judge, the law firm that employs the judge’s child handles a high volume of claims in small amounts exclusively for a single client. Therefore, it appears that the monetary value of any individual case is de minimis relative to the law firm’s likely income (see 22 NYCRR 100.0[D][5] [“‘De minimis’ denotes an insignificant interest that could not raise reasonable questions as to a judge's impartiality”]). In addition, it appears that the judge’s child is a staff attorney and not “the” in-house counsel. In light of these facts, it is the Committee’s view that the judge’s impartiality cannot reasonably be questioned when other attorneys from the law firm that employs the inquiring judge’s child appear in the judge’s court as long as the judge’s child had no involvement in the particular case (see 22 NYCRR 100.3[E][1]). Nor is it reasonable to conclude that the judge’s familial relationship with an attorney the law firm employs will cause an appearance of impropriety in contravention of section 100.2 of the Rules Governing Judicial Conduct when another attorney from the same firm appears (see 22 NYCRR 100.2[A],[B], [C]). Nevertheless, the inquiring judge must disclose his/her child’s status with the law firm when other attorneys from the same law firm appear and, if a party thereafter asks the judge to disqualify him/herself, whether to do so is solely within the judge’s discretion (see People v Moreno, 70 NY2d 403, 405 [1987]).

         The inquiring judge also asks whether any obligation to disclose or disqualify arises when other law firms that also serve as in-house counsel for the same insurance company as does the firm that employs the judge’s child. It is the Committee’s view that when such other in-house law firms appear before the judge, the judge has no relationship to those firms that requires either disclosure or disqualification. Nothing in the facts the inquiring judge presents indicates that the judge’s child will be involved in, or benefit from, any matter that is being handled by the insurance company’s other in-house law firms. Therefore, the inquiring judge may preside when other law firms that also serve as in-house counsel for the same insurance company as does the firm that employs the judge’s child, and has no obligation even to disclose his/her child’s employment relationship with another law firm that serves in the same capacity (see 22 NYCRR 100.3[E][1]).