The following hypothetical is presented solely to illustrate a problem of judicial ethics. Any resemblance to real people is purely coincidental.
A law firm solicits a professional opinion from a practicing psychiatrist about an employee's mental health and stability to resolve concerns it has about that employee's suitability for employment. The psychiatrist has not examined the employee in private consultation; the offering by a psychiatrist of a professional opinion about an individual violates the American Psychiatric Association's (APA) Goldwater Rule that requires a psychiatrist to evaluate an individual in person and obtain that person's consent before offering a professional opinion about that individual to third parties. The law firm terminates the employee after the psychiatrist advises the law firm's senior managers, in violation of the APA's Goldwater Rule, that the employee appears to suffer from a psychiatric "disorder" that may render the employee potentially violent.
The employee sues the law firm alleging that the termination was unlawful in that the firm based its termination decision on the subornation by the law firm's attorney managers of an unethical act from a licensed professional. The employee argues that the law firm's managers as attorneys knew or should have known that the solicitation of a professional opinion from a psychiatrist about an employee's mental health and stability was unethical per the APA's Goldwater Rule and inherently unreliable as an expert opinion. The law recognizes that lawyers are presumed to know the law and must adhere to a higher standard of conduct than nonlawyers.
During the interval between the job termination and the subsequent litigation concerning the termination, the state legislature codified the APA's Goldwater Rule, making it a criminal offense for a psychiatrist to offer a professional opinion about an individual without benefit of personal examination. Thus, as of the time the plaintiff-employee filed an unlawful job termination complaint against the defendant-employer, the psychiatrist's expert opinion violated state criminal statutes.
At the request of the defendant-employer's attorney, the presiding judge affirmatively condones the unethical conduct of the psychiatrist, which, at the time of the proceedings constituted a criminal offense. The defendant-employer's attorney was, in fact, the law partner of the judge's husband.
Does the action of the judge in condoning an unethical act by a licensed professional -- an act that constituted a criminal offense at the time of the proceedings -- at the behest of the defendant's attorney, who happened to be the law partner of the judge's husband, give rise to the appearance of impropriety on the part of the judge? If so, should the judge have recused herself from the proceedings?
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3 comments:
Attaching a personal meaning to general, nonspecific facts may constitute an "idea of reference." Under D.C. law an employer may reasonably conclude that an employee -- even an employee with an outstanding performance record -- who exhibits "ideas of reference" is not suitable for employment and may pose a risk of violence: a tort risk that renders the employee unemployable per The Americans With Disabilities Act. Freedman v. D.C. Dept. Human Rights, D.C.C.A. no. 96-CV-961 (Sept. 1, 1998).
Rich Wiedis was admonished by a federal appeals court judge for playing dumb in a judicial proceedings:
http://www.linkedin.com/pub/richard-wiedis/2b/125/207
The Government of the District of Columbia has affirmed that my former employer, the Washington, DC office of the law firm of Akin, Gump, Strauss, Hauer & Feld ("Akin Gump") terminated my employment in October 1991 on the basis of genuine concerns about my mental health and stability, including the potential for violence. The employer's termination decision was made following an ex parte consultation with a psychiatrist who did not examine me personally. Freedman v. D.C. Department of Human Rights, D.C. Superior Court no. MPA 95-14 (final order, June 10, 1996), affirmed by the D.C. Court of Appeals (Terry, Reid, and King, associate judges), No. 96-CV-961 (Memorandum Opinion and Judgment filed Sept. 1, 1998).
As of the filing of the complaint in the Superior Court proceedings, in October 1995, and at all times thereafter, it was unlawful under the laws of the District of Columbia for a psychiatrist to offer a professional psychiatric opinion about an individual without benefit of personal examination as is strongly recommended by the American Psychiatric Association's Principles of Medical Ethics. The D.C. Code in its latest revision makes it unlawful for a physician to "[fail] to conform to standards of acceptable conduct and prevailing practice within a health profession." See D.C. Code 2-3305.14(26). This provision was added to the District of Columbia Health Occupations Revision Act by D.C. Law 10-247, enacted on March 23, 1995. The Court of Appeals expressly found that the professional psychiatric opinion offered by the psychiatrist to the employer amounted to the diagnosis of a "disorder." See No. 96-CV-961 at 4.
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