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Opinion 46

A county medical society, in cooperation with the State medical society, is sponsoring a seminar for physicians during which a mock trial will be conducted involving a medical malpractice case. A local physician will act as the defendant, and local attorneys will serve as counsel for the physician and for the plaintiff. A Superior Court Judge for the Circuit in which the seminar will be held has been asked to act as judge of the mock trial, and has been informed that the medical society wishes to pay an honorarium for his services. He has requested an opinion from the Commission as to the following matters:

1. Do the Canons of Judicial Conduct permit him to participate in this proposed mock trial?

2. If the Canons allow him to participate, may he request that, in lieu of the payment of the proposed honorarium to him, the medical society make a contribution to the coronary unit of a local hospital, and would it be proper for him to request that such payment be made in the name of his deceased father?

Opinion

1. It is the opinion of the Commission that it would not be proper for a Superior Court Judge to participate as judge in a mock trial of a medical malpractice action held as a part of a seminar conducted by a county medical society.

The medical society, while no doubt having among its purposes the upholding of high medical standards and the improvement of medical standards and the improvement of medical services to the public also exists in part, as any professional or trade organization presumably does, to protect and further the interests of its members, financial and otherwise. Its purpose in conducting the malpractice mock trial is to better inform its members concerning such proceedings, in which they have an understandable interest in this time when as a matter of common knowledge malpractice actions are frequently brought against physicians and substantial judgments often obtained against them.

Rule 3.7(A), dealing with quasi-judicial activities, a judge is authorized to “engage in activities concerning the law, the legal system,and the administration of justice, provided that doing so will not interfere with the performance of their official duties or cast doubt on their capacity to impartially decide any issue.

In Section (1) of this Canon, a judge is specifically authorized to “may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice,” but in the context, in light of the heading of the Section and the Commentary, it is apparent that these activities are approved where their purpose is to improve the law. Conducting a mock trial before a professional or trade group, dealing with an area of tort law in which members of the group are likely to be subject to damage suits, would appear to have the primary purpose of better informing the members of the group concerning a type of litigation in which their personal and financial interests are involved.

Under Rule 3.7(B), dealing with extrajudicial activities, a judge is authorized to “participate in educational, religious, charitable, fraternal, or civic activities that do not reflect adversely upon their impartiality orinterfere with the performance of their judicial duties.” He is permitted to serve as an officer, director, trustee, or non-legal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to certain limitations, one of which is that the judge “shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before them.”

While the medical society has certain educational and fraternal functions, it is, to some degree at least, “conducted for the economic or political advantage of its members.” Further, while it is perhaps not likely that the organization itself will be engaged in proceedings before the judge, it is quite likely that some of its members will, in proceedings of the same type as would be conducted in the mock trial. Thus, Rule 3.7 does not, expressly or by implication, authorize the activity in question.

Under Rule 1.2(A) a judge is required to “act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.” In Commentary [2] to this Canon it is stated:

…Judges must avoid all impropriety and appearance of impropriety. Judges must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen, and they should do so freely and willingly.

There would appear to be a clear risk that participation by the judge in a mock trial conducted at a seminar held by members of a professional group, relating to a field of the law in which lawsuits are likely to be brought against members of the professional group, would be viewed by members of the general public as indicating a special involvement with the professional group and create some doubt as to the judge’s impartiality in future litigation against members of the group.

2. The second question asked becomes moot in view of the opinion given as to the first question. It might be noted, however, that the propriety of acceptance by a judge of an honorarium or payment of any kind in connection with authorized quasi-judicial activity or extrajudicial activity would be governed by Canon 3 and Rule 3.11. In the opinion of the Commission, it would not be proper for a judge to request that an honorarium be paid to a charity or other third party in circumstances where the judge could not, under the applicable provisions of the Canons, permit payment of the honorarium directly to him.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(C), 2.8, 2.11(A), 3.7(B), 3.7(A)(1), 3.11, 3.12. Cross reference to other relevant opinions for review: #32, #61, #102.]

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