Opinion 22-29

March 10, 2022

Digest:   A full-time judge may preside over cases involving an insurance company for which the judge had previously served as in-house counsel once two years have elapsed since the end of the relationship or the final payment of any fees to the judge, whichever is later, provided the judge had no involvement in the case before them as counsel.

Rules:    Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(b)(i)-(ii); 100.3(F); Opinions 20-73; 17-169/17-170; 17-150; 17-100; 15-126; People v Moreno, 70 NY2d 403, 405 (1987).

Opinion:

         The inquiring full-time judge, prior to taking the bench, worked for a law firm that served exclusively as in-house counsel to an insurance company. Approximately three years ago, the judge left that law firm and ceased handling any cases involving that insurance company. All business and financial connections between the judge and the law firm terminated at that time, and the judge has no retirement/pension plan with them. The judge asks if they may preside in cases involving the insurance company.

         A judge must always avoid even the appearance of impropriety and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must disqualify in any proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other circumstances as required by rule or by law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). For example, a judge must disqualify if “the judge knows that (i) the judge served as a lawyer in the matter in controversy, or (ii) a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter” (22 NYCRR 100.3[E][1][b][i]-[ii]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403, 405 [1987]).

         A judge is disqualified, subject to remittal, from presiding in any matters involving a former client for two years after (a) representation of the former client ends or (b) final payment of any fees pending or owed to the judge, whichever is later (see Opinions 20-73; 17-100; 15-126). Following that two-year period, it is ordinarily within the judge’s discretion whether to disclose that the judge or their former law firm represented a client who is currently before the judge as a litigant (see Opinions 17-100; 15-126).

         However, a judge may not preside in a case if “the judge knows that (i) the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]; Judiciary Law § 14). “Even minimal involvement” in the matter as an attorney suffices to trigger disqualification (Opinion 17-169/17-170; see also Opinion 17-150). Disqualification on this ground is mandatory and permanent; it is not subject to remittal and does not expire (see 22 NYCRR 100.3[F]; Opinion 17-150).

         Applying these principles here, it appears that the attorney-client relationship between the inquiring judge and the insurance company completely ended approximately three years ago, as did the business/financial relationship between the judge and the law firm that served as in-house counsel to the insurance company. Accordingly, since more than two years have elapsed since the end of the judge’s attorney-client relationship with the insurance company and the final payment of any legal fees, the judge may now preside in cases involving the insurance company, provided the judge had no involvement in the matter as an attorney.