Opinion 15-150

September 10, 2015

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 first-degree relative is a staff attorney for an insurance company is not required to disclose this fact or disqualify him/herself when that company appears before the judge as a party or as a carrier of a party, provided the judge’s relative is a non-supervisory employee with no role in the case.

Rules:          Judiciary Law § 14; 22 NYCRR 100.0(C); 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(d)(ii)-(iii); 100.3(E)(1)(e); 100.3(F); Opinions 15-06; 14-78; 14-64; 12-105; 11-131; 11-106(A); 10-192; 09-220; 06-111; 05-86; 02-83; 00-43; 99-17; 91-125; 87-08; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A full-time judge’s first-degree relative¹ is now a staff attorney at a national insurance company. The relative will be providing litigation support, involving contacting clients, drafting legal papers and doing legal research for counsel throughout the northeast region, but “will not be working on any cases pending in New York State Courts.” The relative is not a company officer or director and has no supervisory duties. The judge asks if he/she must disclose the family relationship or disqualify him/herself in cases involving the company.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in statutorily specified circumstances (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in other proceedings where the judge’s impartiality might be reasonably questioned (see 22 NYCRR 100.3[E][1]).

         For example, a judge must disqualify him/herself if he/she knows a person within the fourth degree of relationship by blood or marriage is acting as a lawyer in the proceeding (see 22 NYCRR 100.3[E][1][e]) or that a relative within the sixth degree is an officer, director or trustee of a party (see 22 NYCRR 100.3[E][1][d][ii]) or has an interest that could be substantially affected by the proceeding (see 22 NYCRR 100.3[E][1][d][iii]). Conversely, where disqualification is not mandatory under these objective standards, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         Clearly, a judge may not preside in a case where the judge’s first-degree relative acts as a lawyer (see 22 NYCRR 100.3[E][1][e]; Opinion 11-106[A] [prohibition applies if the judge’s child will “be involved in the litigation in some way,” for example, by offering “input” to outside trial counsel]). If the judge’s first-degree relative works for a private law firm, the judge is also disqualified, subject to remittal, when other attorneys in the same law firm appear (see e.g. Opinions 99-17; 91-125; 87-08; see also Opinion 06-111 [noting this applies to all relatives within the second degree of relationship]). However, if a judge’s first-degree relative works for a government law office, in a non-supervisory capacity, then the judge may preside in other cases involving the agency’s attorneys as long as the relative is not personally involved in the case, and the judge need not disclose the relative’s employment relationship (see e.g. Opinions 11-131; 09-220; 05-86).²

         Employment in the insurance field may also present some additional fact-specific considerations. For example, the Committee has advised that a judge whose caseload consists mostly of no-fault insurance cases involving small monetary values must disclose his/her attorney child’s employment³ when a private law firm that employs his/her child and serves exclusively as in-house counsel for an insurance company appears but need not disqualify him/herself provided the judge’s child had no direct or indirect involvement in the particular case (see Opinion 10-192).

         Conversely, the Committee has advised that a judge may preside in cases involving hospitals and insurance companies, even though the judge’s spouse “is a salaried insurance broker employed by a company that places insurance on behalf of the employees of various hospitals” pursuant to contracts with each hospitals (see Opinion 00-43). The Committee emphasized the judge’s non-attorney spouse was “a salaried employee” with no economic interest in any party to a negligence case, and the “outcome of any negligence case against one of the hospitals would not affect the spouse” in any way (id.).⁴

         Although these prior opinions do not directly control this outcome, they point to a flexible analysis where, as here, a judge’s first-degree relative is employed as a private sector attorney, but outside a traditional private law firm. Unlike a private firm, where all partners and associates may be presumed to have a common interest in the firm’s overall success and profitability, and thus a direct or indirect interest in all its cases, nothing suggests a non-supervisory staff attorney in a nationwide insurance company has any cognizable financial or professional interest in cases where he/she is not personally involved.

         Here, the judge’s first-degree relative will not be involved with any cases in the New York State courts and, thus, will not be acting as a lawyer or likely to appear as a material witness in any proceeding before the judge (see 22 NYCRR 100.3[E][1][e]). The Committee discerns no interest of the child that could be substantially affected by a case involving the employer, as he/she is neither an officer nor a supervisory employee (see 22 NYCRR 100.3[E][1][d][ii]-[iii]).

         On these facts, the judge’s impartiality cannot reasonably be questioned in cases of the insurance company, merely because his/her child is a non-supervisory attorney with no involvement in a New York case (see 22 NYCRR 100.3[E][1]). Thus, neither disclosure nor disqualification is required.

         But, if he/she learns his/her first-degree relative is involved in a case, he/she must disqualify him/herself, subject to remittal where appropriate (see 22 NYCRR 100.3[F]).⁵

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         ¹ A first-degree relative includes a child, step-child, parent, or step-parent (see Opinion 14-64 n 1; cf. 22 NYCRR 100.0[C]).

         ² On the present facts, the Committee need not specifically address its prior opinions concerning the non-legal employer of a judge’s non-attorney first-degree relative (compare Opinion 12-105 [private sector] [disqualification, subject to remittal, for matters involving the manufactured home park that employs the judge’s child in its maintenance department] with Opinion 15-06 [public sector] [no obligation for matters involving the probation department that employs the judge’s first-degree relative as a non-supervisory social worker, provided the relative is not personally involved in the matter]).

         ³ The judge’s child was then awaiting admission to the bar.

         ⁴ Although more remote, the Committee has also advised that a judge need not recuse in cases involving an insurance carrier which employs the judge’s third-degree relative, an attorney who is involved in investigations but does not make court appearances, provided the judge does not have reason to know of any personal involvement of the relative in the pending case (see Opinion 02-83).

         ⁵ Remittal is unavailable if a party appears pro se or if the judge is unwilling or unable to make full disclosure (see e.g. Opinion 14-78; 22 NYCRR 100.3[F]). Where available, remittal involves three steps: First, the judge must fully disclose the basis for disqualification on the record. Second, without the judge’s participation, the parties who have appeared and not defaulted, and their lawyers, must all agree the judge may preside. Third, the judge must conclude he/she can be impartial and be willing to preside. If all three steps are satisfied, the judge may accept remittal and must incorporate the parties’ and their attorneys’ agreement in the record (see id.).