January 29, 2015
Digest: It would be improper for a judge who presides in medical malpractice cases to accept a private, “in-house” speaking engagement for the board of trustees of a medical facility that regularly appears before the judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6), (8); 100.3(E); 100.4; 100.4(A) (1)-(3); 100.4(B); 100.4(G); Opinions 13-187; 13-140; 13-116; 12-140; 12-44; 09-181; 09-92; 01-58; 93-82 (Vol. XI).
An officer of a health care facility, that regularly appears in the inquiring full-time judge’s court as a litigant in medical malpractice cases, has invited the judge to speak to the facility’s board of trustees about settlement procedures in the judge’s court. The judge asks if it is ethically permissible to do so.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must always act in a manner that promotes the judiciary’s integrity and independence (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities, including speaking engagements (see 22 NYCRR 100.4[B]), but such activities must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties or be otherwise incompatible with judicial office (see 22 NYCRR 100.4[A]-). A judge must not convey or permit others to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]), must not engage in impermissible ex parte communications (see 22 NYCRR 100.3[B]), and must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]). Nor may a full-time judge practice law, except that he/she may act pro se and may give uncompensated legal advice to a family member (see 22 NYCRR 100.4[G]).
Although a judge may, subject to certain limitations, lecture to audiences consisting of only one “side” of a particular category of cases (see Opinion 12-44), the Committee has also previously advised that a judge may not provide the benefit of his/her judicial knowledge, expertise and experience exclusively to lawyers of a private law firm (see Opinions 13-187 [mock settlement conference as part of private law firm’s associate training program]; 12-140 [speaker at luncheon for private law firm associates]; 09-181 [speaker during private law firm’s forum for women]; 09-92 [in-house continuing legal education program for the judge’s former law firm]; 01-58 [instructing law firm associates in legal writing and advocacy skills]). The Committee has advised that participation in such programs “could create an appearance of impropriety and cast reasonable doubt on the judge’s ability to be impartial” (Opinion 09-92, citing 22 NYCRR 100.2; 100.4[A]).
Here, the inquiring judge’s proposed audience is not a private law firm, but is instead the board of trustees of a particular medical facility that regularly appears in the judge’s court in medical malpractice cases, presumably as a party defendant. In the Committee’s view, it would be equally difficult, if not impossible, for the judge to avoid an appearance of impropriety if he/she were to accept a private “in-house” speaking engagement with the medical facility under the facts presented (see generally Opinions 13-187; 12-140; 09-181; 09-92; 01-58). Accepting this speaking engagement may create an appearance the judge has granted the facility special access to the judge, or that the judge is showing favoritism to the facility by agreeing to share his/her judicial knowledge, expertise and experience concerning settlement of medical malpractice cases exclusively with the facility’s board of trustees (see generally 22 NYCRR 100.2[C]).
For example, under the specific circumstances presented, the Committee believes the proposed private speaking engagement with the medical facility’s board of trustees could interfere with the judge’s judicial duties, as the medical facility’s party adversaries, including former patients, might seek the judge’s disqualification out of concern that the judge may have provided advice on legal strategy concerning settlements and/or engaged in impermissible ex parte communications related to pending or impending cases (see 22 NYCRR 100.4[A]; cf. 22 NYCRR 100.3[E] [a judge must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned]).
Thus, the Committee concludes the inquiring judge should not accept the proposed invitation.