Opinion 92-46

May 7, 1992

Digest:         A judge should disqualify himself or herself from an insurance rehabilitation proceeding where the judge's first cousin is a vice president of another insurance company which has offered to purchase a portion of the rehabilitee's portfolio and where the judge's son has recently interviewed for a legal position, unless the judge discloses the relationships on the record, recuses himself or herself if requested to do so, and proceeds only if the disqualification is remitted by the parties.

Rules:          22 NYCRR §§100.3(c)(1)(i) and (iv)(a); 100.3(d); 100.2(a) and (b).

Opinion:

         A judge who has recently been assigned an insurance rehabilitation proceeding inquires if he or she must recuse himself or herself, where the judge's first cousin, although not involved in the transaction, is a vice president of another insurance company which has offered to purchase a portion of the rehabilitee's portfolio and where the judge's son has recently interviewed for a job in the legal department of that company, although he has not yet been notified of the hiring decision.

         Section 100.3(c) of the Rules of the Chief Administrator provides in pertinent part as follows:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

* * *

(iv) the judge or judge's spouse, or a person within the sixth degree of relationship to either of them or the spouse of such a person:

(a) is a party to the proceeding, or an officer, director, or trustee of a party.

         Whether or not the corporation is technically a party, its interest in the instant proceeding is so direct, that the same rule should apply to it. Thus, since the judge's cousin is within the sixth degree of relationship and is an officer of a party (or an entity that should be treated as a party) to the proceeding, the judge should disqualify himself or herself.

         Turning to the question of recusal because the judge's son has been interviewed for a position in the corporation's legal department, Section 100.2 of the rules provides, in pertinent part, as follows:

(a) A judge shall respect and comply with the law and shall conduct himself or herself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

(b) No judge shall allow his or her family, social, or other relationship to influence his judicial conduct or judgment.

         Although the judge is disqualified from presiding because of the totality of the circumstances involving the judge’s two connections with the corporation, the judge, instead of withdrawing from the proceeding, may disclose on the record the reasons for the disqualification. If, based upon such disclosure, the parties, by their attorneys, independently of the judge’s participation, all agree that the judge’s relationships are immaterial, the judge is no longer disqualified and may participate in the proceeding. The agreement must be in writing or made orally in open court upon the record (22 NYCRR 100.3[d]).