Opinion 10-180

December 9, 2010

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:         Where a judge’s law clerk serves on an advisory board for a doctor’s independent medical research and the doctor previously treated the law clerk’s child for a serious medical condition, the judge may preside in medical malpractice cases involving the hospital subject to the following limitations: (1) If the doctor is not involved in the matter, the judge need not disclose the law clerk’s relationship with the doctor or insulate the law clerk. (2) If the doctor is involved in the matter as a hospital employee, the judge must fully disclose the nature of the law clerk’s relationship to the doctor, insulate the law clerk and may preside if he/she can be fair and impartial. (3) If the doctor is involved in a matter as an independent researcher, the judge must disqualify him/herself, subject to remittal, and insulate the law clerk. (4) If the law clerk is likely to be a material witness in a matter concerning the doctor’s independent research, the judge must disqualify him/herself, subject to remittal and insulate the law clerk if his/her disqualification is remitted.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(F); Opinions 09-211; 08-165; 05-49; 99-93 (Vol. XVIII); 94-34 (Vol. XII).

Opinion:

         The inquiring full-time judge often hears medical malpractice claims arising from patient care administered at a state hospital. The judge’s law clerk’s child has a serious medical condition and has received treatment from a doctor employed at the same state hospital. The doctor has now invited the law clerk to serve on an advisory board for the doctor’s independent research initiative concerning this medical condition, which the doctor will conduct at the same state facility, but that is not part of the doctor’s regular duties as a hospital employee. The judge states that the doctor’s advisory board is intended to “provide a connection to the community facilitating the exchange of information about this medical condition, the research being done and the needs of” those afflicted, as well as their relatives. The board will also provide “some guidance and input” into the doctor’s areas of research. Although the board will engage in fund-raising for continued research, the judge states that the law clerk will not do so. The judge asks about his/her obligations relating to disclosure, disqualification, and insulation in matters involving the state hospital if the judge permits his/her law clerk to serve on the doctor’s advisory board. The judge states that he/she will disqualify him/herself from all matters directly or indirectly involving this specific doctor.

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes the public’s confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Also, a judge must not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). Therefore, a judge must disqualify him/herself in a proceeding in which his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]), subject to remittal where permitted (see 22 NYCRR 100.3[F]).

         In the Committee’s view, there is no reasonable basis to question the inquiring judge’s impartiality in all medical malpractice cases arising out of treatment at the state hospital, solely because the judge’s law clerk serves on the independent research advisory board of one of the hospital’s employees (see 22 NYCRR 100.3[E][1]). Thus, if the doctor is not involved in a medical malpractice case arising out of treatment at the state hospital, the judge has no obligation to disclose his/her law clerk’s relationship to the doctor or to insulate his/her law clerk.

         However, if the doctor is involved in a medical malpractice case as a hospital employee, the judge must insulate his/her law clerk from the matter and must fully disclose the law clerk’s relationship with the doctor (see Opinions 99-93 [Vol. XVIII] [a judge may preside over matters involving the agency where the law clerk’s sister-in-law is employed, provided the judge believes that the judge can be impartial, discloses the relationship to the parties, and insulates the law clerk]; 94-34 [Vol. XII] [a judge whose law clerk is married to a county legislator may preside over matters involving the county legislature, provided the judge discloses to the parties and their attorneys the law clerk’s relationship and insulates the law clerk]). Thereafter, if the judge believes he/she can be fair and impartial, the judge may preside (see id.).

         And, if the doctor is involved in a matter that involves his/her independent research, the judge must disqualify him/herself, subject to remittal (see 22 NYCRR 100.3[F]). However, remittal is not available when a party is unrepresented (see Opinion 08-163). Therefore, if all parties are represented by counsel, and the judge concludes that he/she can be fair and impartial and is willing to preside, the judge may fully disclose the law clerk’s relationship to the doctor and the doctor’s research, on the record, so that the parties who have appeared and not defaulted, and their lawyers, without the judge’s participation, can consider whether to remit the judge’s disqualification (see 22 NYCRR 100.3[F]). The parties’ and their attorneys’ affirmative consent to remittal, if given, must be incorporated into the record of the proceeding (see 22 NYCRR 100.3[F]). After any such remittal, the judge must insulate the law clerk from any involvement in the case (see Opinion 05-49).

         Finally, if the judge’s law clerk will be a material witness concerning the doctor’s independent research, the judge should disqualify him/herself (see 22 NYCRR 100.3[E][1]). Although the Rules do not preclude remittal of disqualification under these circumstances where all parties are represented by counsel and after full disclosure (see 22 NYCRR 100.3[F]), in light of the "close connection between a judge and his/her law clerk, in terms of work performed and public perception" (Opinion 09-211), the judge must very carefully consider whether he/she can be, and will appear to be, entirely fair and impartial should he/she preside in the matter. After such consideration, if the judge is willing to preside and does accept remittal of disqualification, the judge must insulate his/her law clerk from the matter in which the law clerk will testify as a material witness.