Opinion 91-52

April 25, 1991

Please Note: This opinion has been modified or overruled to the extent it suggests a judge’s obligation completely ends when the litigation terminates. See Opinion 20-63.

Please Note: This opinion has been modified by Opinion 17-03 as follows: “The Committee finds that the best approach here is to require disclosure in lieu of disqualification. Unless the judge believes he/she cannot be impartial, he/she need not recuse in the first instance when a private law firm representing a defendant in the child’s lawsuit appears before him/her but must fully disclose the representation. If a party objects, the judge has full discretion about whether or not to recuse under the circumstances. If any party appears without counsel, the judge must disqualify him/herself. The requirement continues until the child’s lawsuit ends…. Opinions 91-52 and 06-14 are hereby modified to be consistent with this result.”

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 who has commenced a medical malpractice suit on behalf of the judge's infant child does not have to recuse himself or herself from any case in which an attorney representing a defendant in the malpractice action appears before the judge, unless the judge believes he or she cannot be impartial. The judge must disclose the information to the attorneys for all parties involved in litigation and if any party objects, the judge should recuse himself or herself.

Rules:          22 NYCRR §§100.2; 100.3(c).

Opinion:

         A judge and the judge's spouse have instituted a medical malpractice action against a hospital and numerous physicians on behalf of their infant child. The judge inquires about presiding when the attorneys for the defendants, while representing other litigants, appear before the judge in court. The judge states the judge will recuse himself or herself from all cases where the defendants in the judge's malpractice suit are involved, as well as from those cases in which the judge's own attorney represents one of the parties.

         Section 100.2 of the Rules of the Chief Administrator of the Courts requires that a judge not only avoid impropriety but also the appearance of impropriety. A judge must also be impartial and diligent in the performance of his or her judicial duties, and must conduct himself or herself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Section 100.3(c) of the Rules of the Chief Administrator states that a "judge shall disqualify himself or herself in a proceeding in which his or her impartiality might be questioned."

         The judge does not have to recuse himself or herself from any case in which one of the attorneys of the firm representing the defendants in the malpractice action at issue appears before the judge in another matter, unless the judge believes he or she cannot be impartial. However, the judge must disclose this information to all parties, where these attorneys are involved. If any party objects to the judge's presiding over the matter, the judge should recuse himself or herself. Disclosure should continue to be made until the disposition of the malpractice case.

         This Committee answers only specific and not speculative questions and, therefore, does not respond to the judge's question concerning other potential conflicts or their possible resolution.