FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-07
Date of Issue: June 5, 2003

JUDGE SERVING AS A MEMBER OF A HOSPITAL'S ETHICS COMMITTEE.

 

ISSUES

May a judge, newly appointed to the county court, continue to serve on a hospital's ethics committee, when the county in which the hospital resides, and the county for which the judge serves, are in the same judicial circuit?

ANSWER: No. The inquiring judge should resign from the hospital ethics committee.

FACTS

The inquiring judge has been appointed a county judge in one county, but for five years served on a hospital's ethics committee in another county. The inquiring judge, who is a founder of the committee, is aware that a judge may not serve on the Board of Directors of a hospital, but the judge asks if it is a violation of the Code of Judicial Conduct to serve on the hospital's ethics committee. The judge states that the committee's function is to provide opinions to physicians, nurses, and other hospital personnel about ethical/medical problems. For example, the committee reviews DNR (Do Not Resuscitate) orders, living wills, hospital orders, and policies which involve ethical questions. The committee also issues opinions which answer questions from patients and patients' families concerning whether the treatment of a patient was ethical. Members of the committee include lawyers, physicians, nurses, and hospital administrators. The inquiring judge has stated that the judge has not participated as a member of the committee since becoming a judge and will not serve on the committee until a response to the inquiry is received approving participation.

DISCUSSION

The inquiry is governed by several Canons of the Code. First, Canon 2A reads:

A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

The Florida Supreme Court's Commentary to Canon 2A of the Code of Judicial Conduct states, "A judge must avoid all impropriety and the appearance of impropriety." In this case, as a member of the hospital ethics committee, the judge participates in issuing opinions which promulgate policy and resolve medical/legal issues.

These facts show that there is a potential for litigation involving the committee because the committee's opinions, which are obviously relied upon by hospital staff, may validate a course of treatment that becomes an issue in subsequent litigation. For example, litigation could result from the hospital's reliance upon the opinions of the committee concerning informed consent. Particularly troublesome are the opinions regarding DNR orders and living wills, which involve the termination of life-support procedures. Recently, a trial court and an appellate court grappled with such matters. See In Re Guardianship of Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001). Moreover, if the judge were to remain as a member of the ethics committee, we foresee that litigation could involve the inquiring judge as a witness or even as a defendant. The appearance of impropriety would be great if the judge were a member of a committee the opinion of which is connected with litigation.

Canon 5A Extrajudicial Activities in General states:

A judge shall conduct all of the judge's extra-judicial activities so that they do not: (1) Cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) Demean the judicial office; or (3) interfere with the proper performance of judicial duties.

Although the inquiring judge writes that the hospital is not located in the county in which the judge serves, both counties are in the same judicial circuit. Chief Judges are authorized to designate county judges to sit temporarily as circuit judges. See Rule 2.050, Florida Rules of Judicial Administration. The inquiring judge can be designated a circuit judge to hear cases from the circuit. The judge's close ties to the hospital would require recusal because the judge's impartiality would be called into question. Moreover, recusal would be required in the county court if the hospital appeared there on matters within the jurisdiction of the county court.

Service on the committee also violates Canon 5 C(3), which states that a judge may serve as an officer, director, trustee or non-legal advisor of a civic organization as long as the service does not violate other requirements of the code.

Canon 5C(3)(a) reads:

A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization

(i) will be engaged in proceedings that would ordinarily come before the judge, or

(ii) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

In Judicial Ethics Advisory Opinion 75-5, we concluded that an inquiring judge, who regularly presided at Baker Act Hearings, could not serve on the board of a mental health center because there could be a conflict or an appearance of impropriety. See also Judicial Ethics Advisory Opinions 74-12, 74-16, 75-2. Although these opinions involve judges serving on mental health boards, the inquiring judge could be placed in a similar situation of conflict or of the appearance of impropriety.

Finally, Canon 5G states that a judge shall not practice law. As a member of the committee, the inquiring judge assists in issuing legal opinions about ethical issues. Although voluntary civic work is encouraged, if the judge remained on the committee, the judge would be giving legal advice.

Based on the facts presented in this inquiry, the Code of Judicial Conduct mandates that the judge resign from the hospital ethics committee. The potential for conflict is so great as to create an untenable position for the inquiring judge.

REFERENCES

In Re Guardianship of Schiavo, 800 So. 2d 640 (Fla. 2d DCA 2001) Florida Code of Judicial Conduct, Canons 2A, 5A(1), 5C(3)(a) and 5G Fla. JEAC Op. 74-2 Fla. JEAC Op. 74-16 Fla. JEAC Op. 75-2 Fla. JEAC Op. 75-5.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact: Honorable Phyllis D. Kotey, Chair, Alachua County Courthouse, 201 E. University Avenue, Gainesville, Florida 32601.

Participating Members:
Judge Lisa Davidson, Judge Charles J. Kahn, Jr., Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)