December 7, 2017
Please Note: As of January 1, 2019, section 100.3(F) also prohibits remittal of disqualification in a fifth scenario, i.e., where the judge “knows that the judge or the judge’s spouse, or a person known by the judge to be within the [second] degree of relationship to either of them, or the spouse of such a person, is acting as a lawyer in the proceeding or is likely to be a material witness in the proceeding,” and “such person personally appears in the courtroom during the proceeding or is likely to do so” (22 NYCRR 100.3[E][e][i]; 100.3[F]).
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 part-time judge, a licensed life/health insurance broker, is disqualified, subject to remittal, in cases involving his/her policyholder customers until their mutual business/financial relationship totally ends.
Rules: Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.4(D)(1); Opinions 17-143; 16-163/16-170; 16-24; 12-13; 11-31; 96-55; 95-100.
A part-time judge who is also a licensed life and health insurance broker does business with the county where he/she presides. The county, in turn, offers “group dental, disability, and life insurance” to its employees. If a county employee expresses interest in the offered coverage, the judge “provide[s] them with an outline of coverage and answer[s] any questions … by mail, email or in a short meeting.” If the employee chooses to participate, the judge “submit[s] a form to the respective insurance company.” The judge asks if disclosure or disqualification is required when a county employee (such as an employee of the sheriff’s department) appearing before the judge is someone he/she interacted with as an insurance broker.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a way that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must disqualify him/herself in any case where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E]) or if otherwise required by rule or law (see 22 NYCRR 100.3[E][a]-[f]; Judiciary Law § 14), including if the judge knows he/she has an economic interest in a party to the case or any other interest that could be substantially
affected by the proceeding (see 22 NYCRR 100.3[E][c]).1
We previously advised a part-time judge who owned a local insurance and real estate agency to disqualify him/herself in cases involving holders of insurance policies obtained through the judge’s agency (see Opinion 96-55; 22 NYCRR 100.3[E]). The same principle applies here, because this part-time judge, as an insurance broker, likewise has a business and financial relationship with customers who purchase insurance policies through his/her agency, since he/she earns money resulting from the sale.
Therefore, the judge is disqualified, subject to remittal, from cases involving his/her policyholder customers. If the relationship continues on a year-to-year basis and the judge still obtains financial benefit, the obligation continues until the business/financial relationship completely ends.
In many instances, the duty continues for two years from the final payment date (see e.g. Opinion 16-24). Here, however, as with a simple landlord/tenant relationship, we expressly decline to impose a “two-year ‘tail’” on the relationship between the judge and his/her policyholder customers (see Opinions 17-143; 12-13).2
Note on Remittal
Finally, for convenience, we here repeat basic principles and procedures concerning remittal as summarized in Opinion 16-163/16-170 (citations omitted):
Rule 100.3(F) forbids remittal of disqualification in four scenarios. That is, remittal is prohibited if the judge: (1) has a personal bias or prejudice concerning a party; (2) knows that he/she served as a lawyer in the matter in controversy; (3) knows that he/she served as a material witness concerning the matter in controversy; or (4) knows that the judge or the judge’s spouse, or a person known by the judge to be within the sixth degree of relationship to either of them, or the spouse of such person, is a party to the proceeding. Because remittal is not available in these circumstances, the judge must disqualify him/herself from the proceeding.
In addition, the Committee has advised that remittal is not available if any party is appearing without counsel or if the judge is unwilling or unable to make full disclosure of the basis for disqualification on the record.
However, assuming all parties are represented by counsel and the judge wishes to offer an opportunity for remittal, the usual three-step process applies. 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 that the judge should not be disqualified. Third, the judge must independently conclude that he/she can be impartial and be willing to participate in the case. If all three steps are satisfied, the judge may accept remittal of disqualification and must incorporate the parties’ and their attorneys’ agreement into the record of the proceeding.
1 We note that a full-time judge, unlike a part-time judge, ordinarily may not hold an insurance agent, insurance broker, or real estate license (see Opinions 95-100; 11-31 [discussing prior opinions and carving out a narrow exception]).
2 The present opinion leaves undisturbed our conclusion in Opinion 96-55 that the two-year tail applies to a judge’s former real estate clients.