Opinion 08-31

March 13, 2008

Digest:         A part-time judge who also is a health care provider is disqualified, subject to remittal, in any proceeding where a current or former patient appears as a lawyer or litigant for a period of two years after the medical relationship ends. Thereafter, the judge may preside if he/she can be impartial. Whether the judge can disclose sufficient information to allow remittal while still complying with the law governing patients’ medical privacy rights is beyond the scope of the Committee’s jurisdiction.

Rules:          22 NYCRR 100.3(E); 100.3(F); 100.4(D)(1)(c); 100.6(B)(4); 101.1; Opinions 95-11 (Vol. XIII); 95-01 (Vol. XIII); 92-63 (Vol. IX); 89-37 (Vol. III)

Opinion:

         A part-time judge is also a health care provider. Recently, he/she accepted a new position and now practices medicine in close proximity to the community where his/her court is located. The judge anticipates that some of the lawyers and litigants who appear in his/her court will seek his/her services as a health care provider. The judge asks how he/she can meet his/her judicial ethics responsibilities when a patient appears in court as a lawyer or litigant and also comply with the law governing patients’ medical privacy rights.

         Part-time judges may accept private or public employment which is not incompatible with judicial office and does not conflict or interfere with the proper performance of their judicial duties (see 22 NYCRR 100.6[B][4]). Judges also are prohibited from engaging in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the courts on which they serve (see 22 NYCRR 100.4[D][1][c]).

         The Committee previously has advised judges who have infrequently engaged in business relationships with lawyers or others coming before the court to disqualify themselves, subject to remittal (see Opinions 95-11 [Vol. XIII]; 95-01 [Vol. XIII]; 89-37 [Vol. III]). If a judge who is disqualified discloses the basis for the disqualification, and the parties who have appeared and not defaulted and their lawyers, without the judge’s participation, all agree on the record that the judge should nevertheless preside, and the judge believes he/she will be impartial and is willing to participate, the judge may participate in the proceeding (see 22 NYCRR 100.3[F]). Absent an agreement to remit the disqualification, the judge must exercise recusal.

         The judge in the present inquiry also should disqualify him/herself when a patient appears in the judge’s court as a lawyer or litigant (see 22 NYCRR 100.4[D][1][c]). Such disqualification also is subject to remittal (see 22 NYCRR 100.3[F]). Whether the judge can disclose the basis of his/her disqualification to allow the parties and their attorneys to consider remitting the disqualification while still complying with the law governing patients’ medical privacy rights is a legal question that is beyond the scope of the Committee’s jurisdiction (see 22 NYCRR 101.1).

         Once the inquiring judge is disqualified, if he/she cannot disclose sufficient information to allow for remittal or cannot be fair and impartial, he/she must exercise recusal (see 22 NYCRR 100.3[E],[F]). The judge must continue to disqualify him/herself for a period of two years after the physician/patient relationship ends and, thereafter, may preside without disclosure, if he/she can be fair and impartial.

         If the judge is disqualified so frequently that his/her position as a health care provider interferes with the performance of his/her judicial duties, the judge must resign from one of the two positions (see 22 NYCRR 100.4[D][1][c]; 100.6[B][4]); Opinion 92-63 [Vol. IX]).