Serving on Board of Directors of Center for Health Care Negotiation

January 15, 1999

CJE Opinion No. 99-1

You have requested the advice of this Committee on whether you may serve on the board of directors of a private non-profit corporation designed to promote the understanding, use and recognition of mediation to resolve health care disputes.

As you describe it, the corporation is devoted to the legal system and the administration of justice through its efforts to facilitate the resolution of legal disputes between parties involved in medical malpractice claims. The corporation is planning to expand its mediation services to include medical malpractice claims pending before your court or which may later be filed in your court, if not successfully mediated. This proposed expansion is a result of collaboration between the corporation and the Massachusetts Medical Society and the Massachusetts Bar Association. Under the proposed expanded services of the corporation, it is anticipated that medical malpractice disputes involving claims of serious injury will be referred to mediators who work for the corporation. The referrals will come from many sources, including judges in your court. In addition to providing mediation, the corporation will also offer the review services of a medical-legal panel, when appropriate. The panel will review a case and make non-binding, confidential findings.

The board of directors is composed mostly of lawyers and physicians. The board is chaired by a physician and a lawyer. You indicate in your letter that this lawyer appears before you from time to time in medical malpractice litigation, as does another lawyer board member. The board will provide general oversight of the mediation process, including the development of mechanisms for mediation of medical malpractice disputes. Because of its oversight role, the board is expected to discuss specific cases and the results of those cases in order to identify areas where the mediation services might be improved or adjusted. From the materials you furnished, it appears that the mediators will be appointed or approved by the board.

On the facts you have presented to us, it is the Committee's opinion that you should not serve on the board of directors. Acceptance of that position may reasonably be viewed as lending the prestige of your office to advance the private interests of others (Canon 2[B]) and may also cast doubt on your capacity to impartially decide issues that may come before you (Canon 2[A] and Canon 4).

Canon 2(B) states "A judge should not . . . lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him." As you noted in your letter, the corporation, through its mediators, will be involved in cases that are likely to come before the court on which you serve and in some instances will actually come before you. In managing your caseload, it is likely that you will encourage parties to a medical malpractice claim to submit the claim to mediation. To the extent parties or attorneys may seek your suggestion of suitable mediation services, you would be in the untenable position of deciding whether or not to include the corporation in your suggested list. If you included the corporation, then you would implicate the strictures of Canon 2(B), in that you may be viewed as lending the prestige of your office to advance the private interests of the corporation. On the other hand, if you do not include the corporation in your list of suggestions because of the conflict concern, then your board membership will have caused an interference with the performance of your judicial duty.

Service on the corporation's board of directors also implicates Canon 2(A), which provides that "A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." As the Committee stated in CJE Opinion No. 97-1, this more general prohibition "may be implicated whenever a judge becomes too closely identified with an organization which . . . espouses a cause that might be seen as impacted by litigation." Such is the case here.

Your service on the corporate board would also implicate Cannon 4 which provides, in part, as follows:

"A judge, subject to the proper performance of his judicial duties, may engage in the following quasi-judicial activities, if in so doing he does not cast doubt on his capacity to decide impartially any issue that may come before him . . . ." Canon 4(C) states, in part: "He may serve as a member, officer or director of an organization devoted to the improvement of the law, the legal system, or the administration of justice."

Thus, your acceptance of a directorship on this corporate board would be viewed as "quasi-judicial" activity within the meaning of Canon 4(C). However, that does not end the inquiry. The question remains as to whether or not your service as a board member would raise questions regarding your impartiality as a judge in medical malpractice cases that may come before you or your court. In CJE Opinion No. 98-8, the Committee, in determining the propriety of a judge's serving on the board of directors of a bar association, reviewed the totality of the various functions performed by the board members in order to decide whether board service would cast doubt on the judge's impartiality. See also, CJE Opinion No. 97-7.

Your impartiality may reasonably be called into question because of the appearance created by the fact that the board has ultimate control and approval over the selection of its paid mediators, many of whom will be lawyers presumably appearing regularly before you. Since it would probably be public knowledge within the legal community that you were a member of the board of directors, you would be lending the prestige of your office to advance the private economic interests of certain lawyers. Also of concern, is the likelihood of your presiding over cases where mediation has failed. As your letter indicates, if mediation in some of those cases were conducted by the corporation, the board of directors would necessarily review many of the cases, in order to identify weaknesses in the mediation process. Although some of the identifying data will be removed before review by the board, it is unreasonable to expect that the case will be so distilled that you would not be able to identify it later if it came before you for trial or other judicial action. Your impartiality, under such circumstances, could reasonably be questioned, since mediation may have included facts about the case that are different from the evidence presented at trial, or opinions about the legitimacy of the claims or defenses in the case, or critiques of the abilities of the lawyers representing the parties or the mediator's evaluation of the parties' claims and defenses.

It is the Committee's advice that you should not accept the position on the board of directors of this non-profit corporation.