May a judge report a physician for over-prescribing drugs based on information learned in the course of a child custody proceeding in the Juvenile and Domestic Relations District Court?
Answer: There is no ethical prohibition against disclosing such information to the Board of Medicine or other regulatory agency if such disclosure is within the purview of the judge's judicial duties. Such disclosure, however, may be regulated by statute.
During the course of a custody proceeding a judge became aware that a medical practice over-prescribed medication to a party in the proceeding who became addicted. A judge has asked if it would be proper to disclose such a concern to the Board of Medicine or other regulatory agency.
The starting point is whether the judge's disclosure to the Board of Medicine or other regulatory agency would be within the purview of the judge's judicial duties. Under the facts of this case it could be argued that the judge's disclosure would be within the purview of the judge's judicial duties.1 The Committee notes, however, that it is not authorized to interpret a judge's obligations under any law other than the Canons of Judicial Conduct.2 As a preliminary analysis, the judge should review the facts and all relevant circumstances and determine whether the disclosure is within the judge's judicial duties. Once the judge makes this determination, the Committee offers the following guidance.
(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, nonpublic information acquired in a judicial capacity.
If a judge were to disclose to the Board of Medicine that a physician over-prescribed drugs, a question of the judge's bias or prejudice could be raised, suggesting a violation of Canon 3B. However, Commentary to Canon 3B (5) and to the analogous section in the ABA Code suggest the term "bias or prejudice" is intended to mean an unfairly positive inclination toward any person, as well as an unfairly negative one, on the basis of their characteristics.3 Therefore, judicial disclosure to the Board of Medicine or other regulatory agency would not violate Canon 3B (5).
If a judge were to disclose to the Board of Medicine that a physician over-prescribed drugs, a question of the judge's disclosure of nonpublic information acquired in a judicial capacity could be raised. There is no Commentary to Canon 3B (11). A reporter's note to an analogous section in the ABA Judicial Code, however, suggests the Canon is directed primarily at prohibiting judges from abusing the public trust for their private gain; for example, a judge would be subject to discipline for investing in stock based upon a tip the judge had learned through information sealed by court order.4 Therefore, judicial disclosure to the Board of Medicine or other regulatory agency would not violate Canon 3B (11).
The Committee, therefore, concludes that if the disclosure is within the purview of the judge's judicial duties, there is no ethical prohibition against a judge disclosing to the Board of Medicine or other regulatory agency that a physician over-prescribed drugs based on information learned in the course of a custody proceeding.
The Committee further notes that such disclosure may be regulated by other statutes, including the confidentiality provisions of the Juvenile and Domestic Relations District Court Law contained in Virginia Code §§ 16.1-302, 16.1-305, and §16.1-309.1. However, as previously stated, the Committee is not authorized to interpret a judge's obligations under any law other than the Canons of Judicial Conduct.
Canons of Judicial Conduct, Canons 3B(5), and 3B(11).
L. Milford, The Development of the ABA Judicial Code.
Order of the Supreme Court of Virginia establishing the Judicial Ethics Advisory Committee, entered January 5, 1999, paragraph 34. Code of Virginia: §§ 16.1-227, 16.1-302, 16.1-305, and §16.1-309.1.
2 Order of the Supreme Court of Virginia establishing the Judicial Ethics Advisory Committee, entered January 5, 1999, paragraph 34.
3 L. Milford, The Development of the ABA Judicial Code, at page16.
Consideration of this opinion was completed before January 1, 2001, and thus Judge Willis did not participate in this opinion.