May 4, 2000
A judge who is on the board of directors of a nursing home which is affiliated
with the not-for-profit parent corporation of two hospitals, should disclose
and exercise recusal in all cases in which the nursing home or either hospital
appears as a party, subject to remittal of disqualification.
22 NYCRR 100.3(E)(1); 100.3(F).
The inquiring judge is on the board of directors of a nursing home which until recently was a not-for-profit corporate component of a small hospital. That hospital and another larger hospital, both are subsidiaries of a parent not-for-profit corporation. In the overall corporate structure the nursing home is denominated as a "corporate affiliate" of the parent corporation of which the two hospitals are subsidiaries. Both the hospital of which the nursing home had been a component and especially the other larger hospital, have cases that could come before the judge. Indeed, the latter hospital "is quite large and is a party to a significant number of cases" in the judge's court. The judge seeks the Committee's advice as to disclosure and recusal in light of the corporate inter-relationships involved.
The Committee is of the opinion that the most feasible course for the judge to follow is to exercise recusal in all instances where either of the two hospitals or the nursing home of which the judge is a director is a party in the case before the judge. The apparent close institutional connection among the three entities creates a situation "in which the judge's impartiality might reasonable be questioned" (22 NYCRR 100.3[E]), even where the actual party is one of the hospitals and not the nursing home. To avoid such a perception, there should be disclosure and recusal. That recusal, however, is subject to remittal pursuant to section 100.3(F) of the Rules Governing Judicial Conduct. But, if, in light of the large number of cases involving one of the hospitals that are likely to appear before the judge, there results an excessive number of disqualifications, the judge should consider resigning as a member of the board of directors of the nursing home.