Opinion 07-206

September 11, 2008

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 presides in a civil court and is the plaintiff in a civil action against a defendant insured by a national insurance company that regularly appears in the judge’s court is disqualified from presiding in all such cases during the pendency of the civil action, subject to remittal except when a party is self-represented. For a period of two years after the judge’s civil action is concluded, the judge must disclose that the insurance company represented the defendant in the judge’s civil action when the insurance company appears in the judge’s court. If a party thereafter objects to the judge presiding, the judge must determine whether disqualification and recusal are warranted.

Rules:          22 NYCRR 100.2(A); 100.3(E); 100.3(F); Opinions 04-100; 88-153 (Vol. III)

Opinion:

         A judge who presides in a civil court is the plaintiff in an action filed against a defendant insured by a national insurance company. The judge asks whether he/she is disqualified when the same insurance company appears in the judge’s court on behalf of other insureds.

         Pursuant to the Rules Governing Judicial Conduct, a judge shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2 [A]). A judge, therefore, is disqualified in any proceeding where the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3 [E]).

         In the Committee’s view, the inquiring judge’s impartiality might reasonably be questioned were he/she to preside in cases where the same insurance company, that currently represents the defendant in the judge’s personal civil action, appears before the judge in unrelated cases. The judge, therefore, is disqualified from presiding in any such cases during the pendency of his/her personal civil action (see 22 NYCRR 100.3[E]). Such disqualification is, however, subject to remittal (see 22 NYCRR 100.3[F]). Therefore, if the judge believes that he/she can be impartial and is willing to participate, the judge may disclose the reason for his/her disqualification and, if the parties and their lawyers all agree on the record that the judge should not be disqualified, he/she may preside (see id.). However, remittal is not available, if any party is self-represented (see Opinion 04-100).

         For a period of two years after the inquiring judge’s personal civil action is concluded, when the insurance company appears in the judge’s court, assuming the judge can be impartial, he/she must disclose that the insurance company represented the defendant in the judge’s personal civil action (see Opinion 88-153 [Vol. III]). If a party objects to the judge presiding, the judge has the discretion to disqualify him/herself and exercise recusal or to preside in the action (see 22 NYCRR 100.3[E], [F]). In determining whether disqualification and recusal are warranted, the judge should consider such factors as the nature of the instant proceeding; whether the prior, personal civil action was settled or concluded after a trial; whether the prior, personal civil action was unusually contentious; the amount of money involved in the prior, personal civil action; and any other special circumstances which would likely create an appearance of impropriety.