Opinion 18-55

March 29, 2018

Digest:         A judge who hears Mental Hygiene Law cases in which hospitals regularly appear as petitioners may participate in a hospital’s “Nurse for a Day” program, in a unit that does not appear before the judge, but must (1) refrain from discussing court-related issues or pending cases and (2) instruct the hospital not to refer to the judge’s judicial status in any publicity concerning the event. Thereafter, for three months, the judge must disclose his/her involvement in all matters involving the hospital. In matters where all parties have, through counsel, provided written blanket “waivers” acknowledging the judge’s participation in the “Nurse for a Day” program, the disclosure requirement is deemed satisfied.

Rule:            2 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 17-74; 09-175; 08-124; 03-45.

Opinion:

         A judge who hears Mental Hygiene Law cases in which hospitals regularly appear as petitioners asks if he/she may participate in a “Nurse for a Day” program at a hospital within the judge’s jurisdiction. For the program, the hospital invites 10 to 20 civic and government leaders to visit patients in a unit that does not appear before the judge. Participants “wear nurse’s scrubs and visit patients who really need visitors.” Publicity will be limited to local newspapers and the hospital’s own website; the judge’s name and likeness will not be used in advertisements or solicitation of funds. The judge has already reached out to counsel for the institutional parties that appear in his/her court on such matters to see if they object to his/her participation in the program. These parties have, through counsel, provided written blanket “waivers” indicating they are aware of the judge’s proposed participation in the “Nurse for a Day” program and do not object to it.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         We have advised that a Family Court judge may visit a domestic violence shelter, even though attorneys from that agency’s public interest law firm sometimes appear in the judge’s court (see Opinion 09-175). However, the judge must refrain from discussing court-related issues or pending cases during the visit (see id.). Of particular note, for a judge who handles Mental Hygiene matters, we concluded that visiting a local shelter to which referrals may be made is primarily an educational opportunity relating to the judge’s judicial duties and does not, in and of itself, create an appearance of impropriety (see id.).¹

         We have advised that a judge need not recuse him/herself from all cases involving a hospital that recently provided emergency medical care to him/her, provided the judge can be fair and impartial (see Opinion 17-74). Indeed, a judge may preside, without disclosure, in matters involving a health care facility and hospital where the judge (1) is a certified emergency medical technician who transports patients there for treatment; (2) receives his/her own health care there; and (3) is friends with certain doctors and nurses employed there (see Opinion 08-124).

         In our view, this judge will not violate the Rules Governing Judicial Conduct merely by participating in a hospital’s “Nurse for a Day” program (cf. Opinion 09-175). As described, we believe the program is, at least in part, a form of community service which does not, in and of itself, create an appearance of impropriety.

         However, when interacting with patients, physicians, hospital staff and lawyers affiliated with the hospital, the judge must keep in mind that many of these individuals may currently have matters pending in his/her court or could be involved in matters that will come before the court in the future. Accordingly, the judge must minimize the risk of impermissible ex parte communications by refraining from discussing court-related issues or pending cases (see 22 NYCRR 100.3[B][6]) and also must not comment on any pending or impending proceeding in the United States or its territories (see 22 NYCRR 100.3[B][8]). The judge also should ensure that his/her conduct at the hospital does not cast reasonable doubt on his/her capacity to act impartially as a judge, detract from the dignity of judicial office, interfere with the proper performance of judicial duties or otherwise appear incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). If these cautions render the judge’s visit a practical impossibility, the judge should refrain from participating in the program (see Opinion 09-175).

         To avoid any possible appearance that judicial prestige is being used to advance private interests, the judge must instruct the hospital not to refer to the judge’s judicial status in any publicity concerning the event (see 22 NYCRR 100.2[C]).

         Finally, for three months after participating in the “Nurse for the Day” program, the judge must disclose his/her involvement in all matters involving the hospital. In matters where all parties have, through counsel, provided written blanket “waivers” acknowledging the judge’s participation in the “Nurse for a Day” program, the disclosure requirement is deemed satisfied.

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         ¹ By contrast, a judge may not participate in a “ride along” program with the local police department (see Opinion 03-45).