Serving on a Hospital Ethics Committee

December 15, 2008

CJE Opinion No. 2008-12     

You have asked whether the Massachusetts Code of Judicial Conduct permits you to accept an invitation to become a member of the Ethics Committee of a local hospital. [Public information from the hospital's website indicates that it is a private, non-profit institution.] You have been informed by the chair of the Ethics Committee that among other topics, many of the major issues discussed by the Ethics Committee concern "end of life" determinations as to appropriate treatment. You have informed the Ethics Committee chair that as a judge you are not permitted to practice law and therefore cannot provide legal advice. (See CJC 4G). The committee chair understands that limitation and would consider you the "Community Representative" on the Committee and would not ask you to provide legal advice.

You include in your request a nine page document from the hospital describing the Ethics Committee. The stated goal of the Committee is fourfold:

   1.   To provide education and support to caregivers and patients on ethical issues.
   2.   To provide a forum to discuss ethical issues arising in the care of patients.
   3.   To analyze difficult questions from many perspectives.
   4.   To provide consultative assistance in the management of relevant ethical issues.

This material indicates that the Ethics Committee offers "consultation services, which are solely advisory, to healthcare providers, patients and their significant others." Committee members may include, but are not limited to representations from administration, physicians, nurses, social services, spiritual care services, community member and ethicist. Cases include questions of patient autonomy, confidentiality, professional conduct and allocation of scarce resources. An "Outline for Ethical Decisions" indicates that ethical discussions involve questions such as who is the responsible decision-maker, what are the goals of treatment, what will the treatment accomplish, what is the balance between the good anticipated and the harm expected, will the treatment work, and does the treatment plan involve the least harmful thing for the patient.

The first question is whether CJC 4C(3) would preclude your service. Section 4C(3) provides that:

   (3) A judge may serve as an officer, director, trustee, or non-legal advisor of an organization or agency devoted to the improvement of the law, the legal system, or the administration of justice; or of any educational, religious, charitable, fraternal, or civic organization that is not conducted for profit or for the economic or political advantage of its members, subject to the following limitations and the other requirements of this Code.

       (a) A judge:
            (i) shall not contribute to, or be a member of, such an organization, except a religious organization, if it is likely that the organization will be engaged frequently in adversary proceedings in the              court on which the judge serves; and

                  (ii) shall not serve as an officer, director, trustee, or non-legal advisor of such an organization if it is likely that the organization will be engaged in proceedings that would ordinarily come                     before the judge or will be engaged frequently in adversary proceedings in any court, state or federal, in the Commonwealth.

The information you submitted with the request does not indicate whether this hospital is engaged in proceedings that would ordinarily come before you as a judge or will be engaged frequently in adversary proceedings in any court in the Commonwealth. As with most community hospitals, this hospital has occasional issues that come before the courts in Massachusetts. In CJE Op. 91-3 this Committee interpreted a substantially similar provision of the prior Code of Judicial Conduct and concluded a judge could serve on a community advisory committee of a non-profit hospital. On the question of whether the hospital might appear before you, CJE Op. 91-3 offered the following guidance:

If such appearances in your court are very infrequent, you may serve and simply recuse yourself were the matter to be assigned to you. However, if such appearances were more than sporadic, recusal would not suffice and your membership on the Committee would be prohibited. Thus, it will be necessary that you regularly review the activities of the Hospital in your court to determine if you may properly continue to serve on the Committee.

See also Comments to CJC 4C(3) ("The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated as an officer, director, trustee, or non-legal advisor to determine if it is proper for the judge to continue the affiliation. For example, non-profit hospitals are now more frequently in court than in the past.")

Whether the hospital is engaged "frequently in adversary proceedings" is also unclear from the information provided. The prior Code of Judicial Conduct prohibited participation when an organization was "regularly engaged in adversary proceedings in any court." The word "regularly" was interpreted to mean "[t]he organization must appear in adversary proceedings in any of the courts of the Commonwealth as a substantial part of its overall activities." CJE Opinion 89-2. The change from "regularly" to "frequently" suggests that the question is no longer the role of litigation in the organization's activities, but rather how often the organization appears in court, even if court litigation represents a small part of the organization's overall activity. See also CJE Opinion 90-4 (requiring detailed factual analysis of circumstances in which organization may be involved in proceeding), CJE Opinion 2005-2 (judge precluded by CJC from serving on Board of Trustee of private, non-profit acute care hospital.)

Based on the analysis above, you must examine the hospital's activities to determine if the hospital ordinarily appears before your court or if the hospital frequently appears before the courts in Massachusetts. If so, Canon 4C(3) would prohibit your participation.

If you conclude that the hospital's litigation does not preclude your participation, you must take special care in your service on the Ethics Committee. Canon 2B states that "[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others..." As such, it is important that the Ethics Committee not identify you as a judge nor imply that your legal judgment offers particular expertise or gravitas to the Ethics Committee deliberations. See generally CJE Opinion 2008-18 ("There is also the potential danger that your service as an officer of the council [on Special Education] may be perceived as lending the prestige of the judicial office to advocate in the public arena as a representative of a group on issues related to policy making.") In addition, under 4A(3), the Ethics Committee work must not "interfere with the proper performance of judicial duties."