When must a Maryland judge connected to a hospice step aside from cases involving it or its affiliated hospital?

Plain-English summary

The judge considered volunteering for a hospice program, while the judge’s spouse served without pay on its board. The hospice and an affiliated hospital were separate corporations but shared staff and facilities, and the hospice was described as a hospital department.

The Committee concluded that active volunteer service made participation in hospice cases improper. The spouse’s board seat expressly required recusal when the hospice was a party under the then-cited Rule 2.11(a)(2)(A).

For a hospital case unrelated to the hospice, the Committee did not impose automatic recusal. It said the result could depend on how the public understood the relationship between the two organizations. It advised disclosure of the circumstances and seeking a waiver under Rule 2.11(c), while reminding the judge of the ban on activities that lead to frequent disqualification.

In practice

The opinion separates hospice cases from hospital-only cases. It treats the latter as fact dependent and calls for disclosure and seeking the cited waiver.

Common questions

Q: Must the judge recuse from a case involving the hospice?

A: Yes, if actively volunteering there or if the spouse is on its board and the hospice is a party.

Q: Is recusal automatic in a case involving only the hospital?

A: No. The Committee said it could depend on the surrounding circumstances and public perception of the hospital-hospice relationship.

Q: What did the Committee say about hospital-only cases?

A: The Committee advised disclosure of the circumstances and seeking a waiver under Rule 2.11(c).

Background and rules framework

The opinion applies the then-cited Maryland Code of Judicial Conduct, Maryland Rule 16-813, Rules 1.2, 2.11(a)(1), 2.11(a)(2)(A), 2.11(c), and 3.1(b).

Citations and references

Maryland Code of Judicial Conduct:

• Maryland Rule 16-813, Rules 1.2, 2.11(a)(1), 2.11(a)(2)(A), 2.11(c), and 3.1(b).

See also

• MD Judicial Ethics Op. 2015-27: Prior advice and magistrate recusal

Source

• Landing page: Maryland Judicial Ethics Committee opinion index
• Original PDF: Opinion 2012-15

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Maryland Judicial Ethics Committee

Opinion Request Number: 2012-151

Date of Issue: March 4, 2013

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

Recusal of Judge Who Serves As a
Hospice Volunteer From Cases
Involving The Hospital
With Which Such Program is Affiliated
and

Recusal of Judge Whose Spouse Serves on Hospice Board From Cases Involving Such Program or
The Hospital With Which Affiliated

Issue: Under what circumstances should a judge recuse him/herself from cases involving a hospice program or the hospital affiliated with such program if: 1) the judge serves as a volunteer for such program, or 2) the judge’s spouse serves as an unpaid member of such program’s board?

Answer: The judge should recuse him/herself from any cases involving the hospice program because of the judge’s spouse’s position as a member of such program’s board of directors. In addition, the Judge may also be required to recuse him/herself from cases involving the hospital, and not implicating the hospice program itself, if surrounding circumstances might cause the “judge’s impartiality ... [to] reasonably be questioned.”

Facts: The requestor (the “Judge”) indicates that a local hospital is owned and operated by a corporation (the “Hospital”). Meanwhile, a separate 501(c)(3) corporation operates a hospice program (“Hospice”2) which utilizes certain staff whose compensation is paid by the Hospital and which operates out of a facility owned by the Hospital, but not on the main Hospital grounds. Although the Hospital and Hospice are separate legal entities with separate governing boards, according to the inquiry, “Hospice is considered a department of the [H]ospital [emphasis

1
Judge Kenney did not participate in this opinion.
2
The term “hospice” typically refers to a program which provides medical care to terminally ill patients in their own residences and does not necessarily refer to a particular place. Thus, unlike the proper noun “hospital,” “hospice” is seldom preceded by the article “the.” Nevertheless, such programs are increasingly run by separate legal entities administered from of a central facility. For purposes of clarity, while this opinion omits the article “the” when referring to “Hospice,” such references are to the legal entity and the place, not merely the program. Maryland Judicial Ethics Committee Opinion Request Number: 2012-15 Date of Issue: March 4, 2013

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

Page 2 of 4
added].”3

Based upon the foregoing facts, the Judge has inquired whether his/her service as a volunteer for Hospice “would disqualify [him/her] or result in [his/her] recusal ... [in] any case not including Hospice or related to the Hospice operation, but [which] does involve either the corporation or the local hospital? [Emphasis added.]” (It thus appears that the Judge already has concluded that it would not be appropriate to preside over proceedings involving Hospice if the Judge were acting as a volunteer therefor.) The Judge has also inquired whether the Judge’s spouse’s membership on Hospice’s unpaid board of directors would require the Judge’s recusal from cases involving either Hospice or the Hospital. (In no event would the Judge be associated with fund-raising activities.)

Discussion:

Rule 2.11(a)(1) and (a)(2)(A) of the Code of Judicial Conduct (Md. Rule 16-813) provides:

(a) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including the following circumstances:

(1) The judge has a personal bias or prejudice concerning a party ...

(2) The judge knows that the ... judge’s spouse ... :

(A) is a party to the proceeding, or an officer, director ... of a party.

(Emphasis added.)

In addition, Rule 1.2 states:

3
It is not entirely clear who “consider[s Hospice] a department of the [H]ospital”–the entities themselves, Hospice patients, the general public, or all. It is conceivable that the Hospital might represent to patients referred to Hospice that the relationship is seamless and that the Hospital intends to be accountable for Hospice’s service and performance. On the other hand, the general public may not share this perception. Meanwhile, in other contexts, none of the concerned parties might behave as though any “considered” Hospice to be a department of the Hospital, as when Hospice, acting through its own board and/or officers might contract for equipment or supplies or maintain accounts in its own name. Maryland Judicial Ethics Committee Opinion Request Number: 2012-15 Date of Issue: March 4, 2013

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

Page 3 of 4

(a) A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary.

(b) A judge shall avoid conduct that would create in reasonable minds a perception of impropriety.

Based upon the foregoing provisions, the Committee agrees with the Judge’s implicit conclusion that it would be improper for the Judge to participate in proceedings involving Hospice if the Judge is then actively volunteering for that organization. (The Committee considers it doubtful that a judge who volunteers for such an organization would approach proceedings relating thereto from a purely neutral position, and, in any event, the Committee believes that “reasonable minds” among the “public”could perceive such a failure to recuse as improper and inconsistent with the judge’s obligation to act impartially.) In addition, it is the Committee’s opinion that Rule 2.11(a)(2)(A) expressly requires the Judge to recuse him/herself from proceedings in which Hospice is a party if the Judge’s spouse is a director thereof.

The Judge has also inquired whether either the Judge’s potential volunteer activities on behalf of Hospice or the Judge’s spouse’s service on Hospice’s board would require the Judge’s recusal from proceedings involving the Hospital but “not related to the Hospice operation” (emphasis added).

On the one hand, that the Hospital and Hospice are separate legal corporations with separate boards of directors suggests that the Judge’s ties with Hospice ought not disqualify the Judge from cases involving the Hospital but not involving Hospice. The fact that both operate out of different facilities also makes it less likely that their identities would be perceived as equivalent by the general public, while the financially supportive role of the Hospital may not be commonly known to the public or patients.

On the other hand, inasmuch as the inquiry also indicates that “Hospice is considered a department of the [H]ospital [emphasis added],” if this is an accurate depiction of the public’s perception of the two, then the public may make no distinction between them,4 and the Judge’s

4
It is not uncommon for hospitals to contract with other legal entities for purposes of rendering services in particular departments within the hospital. In most instances (e.g., emergency departments), the public is oblivious to this circumstance and believes that care rendered by a subcontracting entity is being rendered by the hospital itself. This perception of course, carries with it legal implications, not the least of which is liability. However, while most citizens likely have experience with “emergency rooms,” most likely do not have experience with hospice programs. It is not entirely clear, therefore, whether members of the public not involved or acquainted with Hospice would perceive any impropriety in the Maryland Judicial Ethics Committee Opinion Request Number: 2012-15 Date of Issue: March 4, 2013

Published Opinion 9 Unpublished Opinion 9 Unpublished Letter of Advice

Page 4 of 4

and/or the Judge’s spouse’s ties with Hospice could create an appearance of impartiality and potentially disqualify the Judge from hearing cases involving the Hospital.

After much consideration, it is the Committee’s view that while much of the general public may be unlikely to deem the Judge’s or the Judge’s spouse’s connections with Hospice substantial enough to conclude that the Judge could not impartially hear cases to which the Hospital was a party if such proceedings had nothing to do with Hospice, the Judge would be well advised to nevertheless disclose the circumstances and seek the waiver provided for in Rule 2.11(c). The Committee will also note that the Judge should be mindful of Rule 3.1(b)’s provision that “[a] judge ... shall not ... participate in activities that will lead to frequent disqualification.”

Application: The Judicial Ethics Committee cautions that this opinion is applicable only prospectively and only to the conduct of the requestor described in this opinion, to the extent of the requestor’s compliance with this opinion. Omission or misstatement of a material fact in the written request for opinion negates reliance on this opinion.

Additionally, this opinion should not be considered to be binding indefinitely. The passage of time may result in amendment to the applicable law and/or developments in the area of judicial ethics generally or in changes of facts that could affect the conclusion of the Committee. If you engage in a continuing course of conduct, you should keep abreast of developments in the area of judicial ethics and, in the event of a change in that area or a change in facts, submit an updated request to the Committee.

Judge’s hearing cases involving the Hospital.