Gifts, art, pronouns, and ex parte communications

Gifts
In a recent opinion, the California Supreme Court Committee on Judicial Ethics Opinions advised that judges “may exchange modest gifts with their courtroom staff.”  California Expedited Opinion 2021-39. However, it explained ed that judges should “treat all staff equally and maintain proper decorum” should not pressure staff to reciprocate.  Moreover, the opinion added that judges should not give gifts that are “offensive, demeaning, or otherwise inappropriate” or gifts that could “be perceived as harassment.”

The opinion noted that “acknowledging birthdays, holidays and other special occasions can be an appropriate way to build morale among a judge and his or her staff.”  However, it emphasized that, “to the extent reasonably possible, judges should endeavor to treat their staff equally.”  For example, it stated that judges should not give “significantly disproportionate” gifts to different staff members or only “celebrate the birthdays of certain of their staff while ignoring the birthdays of others.”  Moreover, it advised judges to be “sensitive to and respect the fact that staff may come from different faiths and traditions” and “to the extent reasonably possible, . . . tailor any gifts that they give to align with the heritage and belief systems of their staff.”

The opinion advised judges to tell their staff that “there is no obligation or expectation” that they will give the judge a gift in return for the judge’s gift and warned judges not to implicitly pressure their staff for such an exchange, noting that staff are more likely to feel that reciprocation is required if the judge’s gift is expensive or extravagant.  Thus, the committee directed judges to “keep any gifts modest” reflecting “the power and financial imbalances between themselves and their staff.”  Further, it stated that “judges should not solicit staff for a group gift.”

The committee also stated that judges should not “give gifts that are offensive or demeaning,” for example, a gift that is “obscene, profane or degrading in any way to the recipient or to others” or that is a practical joke.  Finally, it stated that judges should not “give gifts that would be perceived as harassing, for example if given in the expectation of fostering a romantic or sexual relationship with a staff person.”

Art
In a recent opinion, the New York Advisory Committee on Judicial Ethics stated that judges may undertake “a project to contextualize existing art and memorials at the courthouse and install new thematic artworks created by artists from marginalized groups” in collaboration with a non-profit historical society.  New York Advisory Opinion 2020-202.  The committee noted that the judge should first obtain any required administrative approvals.

The inquiring judges were members of a court’s committee on bias and noted that, “[w]hile the law in the United States has proven to be dynamic, and gradually has changed to include protections for marginalized groups, the art in our courthouse has remained static, and displays aesthetics that reflect a less inclusive, and less just, America.”  To make the courthouse more inclusive and educational, the judges wanted to work with “scholars of legal history and architecture to help create signage and other materials that would ‘interrogate our public art and place it in the context of our nation’s history.’”  The judges would prepare written plans for the project, and the Historical Society of the New York Courts would apply for grants.  After funds were received, the judges would collaborate with the Society in their allocation.

The advisory committee concluded that the project was not only “ethically permissible” but supported the court system’s “efforts to eliminate bias and prejudice and thereby promote public confidence in the judiciary.”

Pronouns
In a recent opinion, the New York Committee stated that, when “a party or attorney has advised the court that their preferred gender pronoun is ‘they,’ a judge may not require them to use ‘he’ or ‘she.’”  New York Advisory Opinion 2021-9.  The inquiring judge was concerned that “the use of ‘they’ could create confusion in the record as to the number of persons to whom a speaker is referring.”

The committee recognized that “a judge may take reasonable steps to ensure the clarity of the record, including courteously referring to an individual by surname and/or their role in the proceeding as appropriate.”  However, it stated, “a judge must be careful to avoid any appearance of hostility to an individual’s gender identity or gender expression.”  The Committee explained:  “Adopting and announcing the sort of rigid policy proposed here could result in transgender, nonbinary or genderfluid individuals feeling pressured to choose between the ill-fitting gender pronouns of “he” or “she.”  This could not only make them feel unwelcome but also distract from the adjudicative process.”  Therefore, it concluded, “the described policy, if adopted, could undermine public confidence in the judiciary’s impartiality.”

It also found that there was “no reason for a judge to pre-emptively adopt a policy barring all court participants, in all circumstances, from being referred to by singular ‘they’. . . .”  It noted that “they” “is one of three personal pronouns in the English language” and has been recognized as a grammatically correct use for an individual, citing Merriam-Webster’s addition of that usage to its dictionary definition in September 2019 and its choice as the 2019 Word-of-the-Year.

The Committee expressed its trust that judges can “handle an expressed preference for the use of singular ‘they’ on a case-by-case basis, adopting reasonable procedures in their discretion to ensure the clarity of the record as needed.”  It also noted that a judge could make “adjustments over the course of a proceeding” if they find that “an initial approach was unsuccessful or confusing.”

Ex parte communications
In a recent opinion, the Illinois Judicial Ethics Committee advised that a judge is not required to recuse from a case after an unsolicited ex parte communication from a litigant if the judge halts the communication as soon as possible, disregards it, and promptly advises all parties.  Illinois Advisory Opinion 2020-1.  The committee did note that judges may “wish to insulate themselves, to the extent possible, from such communications,” for example, “by issuing a standing order to make clear to non-lawyers that such communications are not allowed.”

The inquiry came from a judge who had received an email from a self-represented litigant with “extensive and substantive information about a case.”  The email was sent directly to the judge, and opposing counsel was not copied.  The litigant had learned the judge’s email address when the judge, in order to schedule virtual hearings, communicated by email with the litigant and the attorney representing the other side. 

The committee stated that, after receiving an unsolicited ex parte communication, a judge’s first step was “to ensure that the ex parte communication is disclosed to the other party.”  The opinion noted that “an ex parte communication received via email makes possible a verbatim disclosure of the communication,” which “diminishes the opposing party’s concern about whether it knows the full substance of the communication made to the judge.”  The inquiring judge had “immediately notified the other party of the communication.”

After disclosure, according to the committee, the judge should determine “whether, as a result of the ex parte communication, the judge’s neutrality has been affected; in other words, has the judge become actually biased based on what was learned?,” which would require recusal.  The committee noted that the “inquiring judge did not feel that receipt of the communication affected their neutrality,” adding that “it would be unusual for a judge to be unable to compartmentalize” information they could consider from information they could not consider.

Finally, the committee advised that the judge should analyze whether the ex parte communication raised reasonable questions about the judge’s impartiality, noting that recusal “should be required only ‘if additional circumstances give rise to an appearance of bias,’ such as the ‘judge’s initiation of an ex parte communication.’”  An ex parte communication is less likely to require recusal under that test, the committee explained, if the judge did not initiate it, “shut[] it down” when it was recognized, and promptly disclosed the communication to the other side.  The opinion emphasized that “a judge’s initiation of an ex parte communication might create concerns about the judge’s impartiality, but the same is not true when some other person initiates the communication.  The action of another does not implicitly create any inference about the judge’s impartiality.”  The committee also noted that a rule requiring recusal following any ex parte communication “’would allow a party to remove a judge from a case by initiating an ex parte contact, which would encourage unethical ploys and allow manipulation of the judicial process.’” 

Anonymous gifts trending

In 2017, 2 judicial ethics committees responded to requests from judges about what to do with anonymous gifts.

In Florida Advisory Opinion 2017-11, the judge had received an anonymous birthday card at home that contained $10,000 in cash.  The judge immediately turned the money over to the sheriff’s office.  After an investigation, the sheriff’s office “determined that the money was almost certainly sent by a person who, at the time the judge received the money, had a case pending before the inquiring judge” but that it did not have enough evidence to charge the litigant.  The money remains in the sheriff’s custody.

The Florida Judicial Ethics Advisory Committee advised that the code of judicial conduct does not provide guidance for how the judge should dispose of the $10,000 but discouraged the judge from trying “to direct the method and manner in which the gift is disposed of . . . .”  The committee explained:

Any such efforts by the inquiring judge calls into question the integrity of the prior judicial proceedings.  Additionally, if the inquiring judge were to direct that the money be given to a particular charitable organization or other charitable groups such a decision could be perceived as the judge using the judicial office to solicit funds for a particular group in violation of Canon 5C(3)(b)(iii).

The committee did suggest that the judge could “[d]isclaim any possessory interest in the funds,” leaving it with the sheriff’s office and allowing them to decide what to do with the funds or requesting that they turn it over to the Florida Department of Financial Services, Division of Unclaimed Property.  See also West Virginia Advisory Opinion (December 5, 2012) (a judge who received an envelope containing an anonymous note and a $20 bill should promptly notify court security and turn the note and the $20 bill over to the sheriff as potential evidence).

In New York Advisory Opinion 2017-87, the New York Advisory Committee on Judicial Ethics responded to an inquiry from a judge who had had a modest, anonymous gift of food left at her chambers.  The identity of the donors was unknown, but the judge believed it came from a religious sect, the members of which have no pending cases before her.  Noting “there does not appear to be any basis to conclude that any of the unidentified donors is a ‘party or other person who has come or is likely to come or whose interests have come or are likely to come’” before the judge, the committee stated that the judge may retain the gift.

Recently, several newspapers reported that, in Wisconsin, the day after Judge Angela Sutkiewicz denied Steven Avery’s request for a new trial, someone sent her a floral arrangement at the courthouse with a card that said, “Best wishes from your admirers at SAIG (Steven Avery Is Guilty).”  Avery had been convicted in 2007 for the murder of a freelance photographer; the case was profiled in a 2015 hit Netflix film, Making A Murderer.  In a letter to counsel in the case, the judge stated that she had “rejected” the floral arrangement and returned it to the flower shop.  The judge also contacted the sheriff’s department “in an abundance of caution,” and the sheriff’s department “determined that the sender is neither a party to this case nor is representing a party in this case.”  See, e.g., “Judge Cries Foul After Anti-Steven Avery Group Apparently Sends Her Flowers,” by Aaron Keller, Law & Crime (December 2, 2017).

 

‘Tis the season

Gifts

Judicial ethics committees are split on whether judges and their staffs may accept holiday gifts from lawyers or vendors under the code of judicial conduct.  (State and/or local regulations may also apply.)

Several committees advise that such gifts are unacceptable.  The Kentucky committee, for example, advised that a judge may not accept even nominal Christmas gifts such as boxes of candy and poinsettias from persons whose interests are likely to come before the judge, and the prohibition extends to the judge’s staff.  Kentucky Advisory Opinion JE-86 (1995).

Similarly, the Florida committee concluded that a judge may not accept gifts from lawyers or law firms if they have come or are likely to come before the judge and should direct court personnel not to accept such donations.  Florida Advisory Opinion 2000-8.  The committee noted the judge who sent the inquiry described “what seems to be a frequent occurrence in some Florida jurisdictions,” reaching “epidemic proportion[s].”

During the winter holiday season, attorneys, vendors, and others, offer gifts to judges, judicial assistants, bailiffs and other court employees.  In the past, the gifts normally consisted of candy, fruit, nuts, stuffed animals and liquor.  That tradition is no longer followed and gifts of money, and certificates redeemable for cash, goods, or services are presented to court personnel.

 See also Texas Advisory Opinion 194 (1996) (a judge, court coordinator, court reporter, clerk, or bailiff may not accept seasonal gifts from a lawyer or law firm); West Virginia Advisory Opinion (September 19, 2006) (a judge or court staff should not accept Christmas gifts such as cakes, cookies, candy, fruit baskets, or gift certificates from attorneys who regularly appear in family court or from a court interpreter who provides services to the court).

Those opinions are based on a code of judicial conduct provision stating that a judge may only accept a gift if “the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge,” which was Canon 4D(5)(h) of the 1990 American Bar Association Model Code of Judicial Conduct.

In contrast, several advisory committee have concluded that inexpensive gifts at holiday time fall within the ordinary social hospitality exception to the gift rule and may be accepted by a judge and court staff even from lawyers who appear before the judge.  The Wisconsin committee, for example, advised that a gift of candy or fruit from a law firm would “come within the ambit of ‘ordinary social hospitality’ as long as it is of de minimis value.”  Wisconsin Advisory Opinion 1998-10R.

Similarly, the Oklahoma committee stated that a judge may accept a gift during the Christmas season from an attorney who makes a comparable gift to all judges when the gift is inexpensive, for example, food, a tie, a book, or similar item, although it added that “in each case, the judge must consider the appearance of impropriety and exercise caution and good judgment.  Oklahoma Advisory Opinion 2001-3.  The committee explained:

A judge, like other members of society, must be permitted to be involved in ordinary social amenities.  “Ordinary social hospitality” . . . would suggest a gift that would not cause reasonable people in the community to believe the donor was obtaining or intending to obtain any special advantage, nor that the donee would have cause to give the donor any unfair advantages.

It is impossible to set specific parameters regarding such gifts.  A gift package of homemade cookies at Christmas surely would not be perceived as an impropriety.  Larger gifts – season tickets to sporting events, free use of a vacation home, free vacation on a cruise ship – would be more than the perception of impropriety.  If a gift is given where gifts are traditional, such as special occasions or holidays, or if the gift is given to all of the judges in the Courthouse, there would seem to be no impropriety.

 See also Oklahoma Advisory Opinion 2001-4 (a judge may allow her staff to accept inexpensive gifts from attorneys on special occasions, for example, Christmas); Washington Advisory Opinion 1993-17 (a judicial officer may allow a court employee to accept gifts of nominal value, such as food trays or candy, from local attorneys and court vendors during the holiday season, but should ensure that practice does not create an appearance of partiality or impropriety).

That interpretation of “ordinary social hospitality” is similar to the gift rule from the 2007 ABA model code.  The 2007 amendments eliminated the prohibition on gifts from anyone whose interests are likely to appear before the court and substituted a prohibition (Rule 3.13(A)) on gifts that “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”

Parties

In general, judges and court staff have been permitted to attend law firm holiday parties, although the approval is not unconditional and each invitation requires a fact-specific inquiry.

The New York committee, for example, stated that “[a] judge may attend an ordinary holiday-type party or similar function given by a lawyer, law firm, or legal agency.”  New York Advisory Opinion 1987-15(a).  The committee emphasized “the word ‘ordinary’; this would not include, for example, a party that provides guests with a complete dinner at an expensive restaurant, a cruise, or like affair that is more expensive or lavish than an ordinary party.”

Whether an “event is a traditional occasion for social hospitality such as a holiday party or the opening of an office” is one of the factors the California advisory committee identified as relevant to a judge’s determination whether a social event hosted by an attorney constituted ordinary social hospitality.  California Advisory Opinion 43 (1994).  The committee developed the following, non-exhaustive list:

  1. The cost of the event in the context of community standards for similar events. What may seem excessive in one part of the State or county may be within ordinary hospitality in other places depending on what is customary and reasonable in the community in question.
  2. Whether the benefits conferred are greater in value than that traditionally furnished at similar events sponsored by bar associations or similar groups.
  3. Whether the benefits are greater in value than that which the judge customarily provides his/her own guests. The events which a judge hosts tend to reveal the judge’s view of ordinary social hospitality.
  4. Whether the benefits conferred are usually exchanged only between friends or relatives such as transportation, housing or free admission to events which require a paid admission.
  5. Whether there is a history or expectation of reciprocal social hospitality. If a judge is invited to a social event by an attorney who the judge has invited in the past or is likely to invite in the future to similar events; this is suggestive of ordinary hospitality.
  6. Whether the event is a traditional occasion for social hospitality such as a holiday party or the opening of an office.
  7. Whether the benefits received are reportable to any governmental entity.

The Oklahoma committee approved those factors as “good common sense considerations.”  Oklahoma Advisory Opinion 2005-1.  Stating “[t]here is no ‘one size fits all’ answer,” the committee explained that a judge should ask, “Could my acceptance of this invitation give rise to the perception by reasonable persons that it might cause me to act in a manner not keeping with my obligation to avoid impropriety and to maintain the impartiality and independence required of the judiciary?”  The committee noted that “a judge should be cautious about accepting invitations from one group, but declining invitations from its counterpart, i.e., those identified as plaintiffs or defendants advocates.”  The committee also emphasized that “the appearance of impropriety would be high should the judge accept such invitations from a firm involved in a ‘high profile case’ currently assigned to the judge.”

Similarly, the Connecticut committee advised that a judicial official may attend a large holiday party hosted by a law firm only if the firm is not actively engaged in litigation or proceedings before the judge and the party constitutes “ordinary social hospitality.”  Connecticut Emergency Staff Opinion 2015-23.  If the judge does attend, the committee stated, the judge must not permit the host firm to announce his attendance, may not engage in any action that may be perceived as advancing the private interests of the host law firm, and may not discuss any pending matters with the hosts or guests.  After the party, the committee stated, the judge must, for a reasonable time, recuse himself or disclose and seek remittal should the firm appear in a case.

The Wisconsin committee also advised that a judge or the judge’s staff may only attend a holiday party given by a law firm if the firm is not involved in a current trial or one about to begin before the judge.  Wisconsin Advisory Opinion 1998-10R. The committee also conditioned the judge’s attendance on no clients being in attendance at the party and the hospitality being limited to ordinary social hospitality.

See California Advisory Opinion 47 (1997) (a judge may attend events such as a law firm’s holiday party); New York Advisory Opinion 1987-12(a)(b) (a judge may attend an ordinary holiday-type party given by a law firm or legal agency); New York Advisory Opinion 2010-195 (a judge may attend a holiday celebration hosted by the prosecutor’s office where he worked just prior to assuming the bench); Texas Advisory Opinion 194 (1996) (a judge, the judge’s staff, court officials, and others subject to the judge’s direction and control may attend holiday or seasonal law firm parties if the party is open to people other than judges and court personnel); Washington Advisory Opinion 1991-27 (a judge may attend a law firm holiday open house at which snacks and/or beverages may be offered).

But see New Jersey Advisory Opinion 46-2000 (judges may not attend the county Hispanic Bar Association’s holiday reception if it is held at a law office); New Jersey Advisory Opinion 62-1992 (municipal court judges and court employees may not attend a holiday party hosted by a law firm); New Jersey Advisory Opinion 57-1995 (judges may not attend a holiday party hosted by the county prosecutor’s office).

See also Connecticut Informal Opinion 2013-47 (a judicial official may attend a holiday party at a restaurant hosted by a municipality’s governing body if the municipality does not have any matter pending before her and does not regularly appear before her, if she will pay the full cost to attend, and if the party is not a fund-raiser or a lavish event); Delaware Advisory Opinion 2004-6 (a judge may attend a holiday reception given by an organization whose executive director is the sister of a father in a custody dispute over which the judge presided that is currently on appeal); Delaware Advisory Opinion 2005-4 (a judge may attend a holiday party hosted by the governor that benefits Toys for Tots); New Jersey Advisory Opinion 73-1994 (municipal court judges may not attend a holiday open house at the home of a township trustee); New Jersey Advisory Opinion 47-2000 (a judge may not attend a holiday party given by and for township employees, even though attendees pay their own way); New York Advisory Opinion 2013-192 (a judge who has retained a firm to promote and lobby for a proposed law relating to the courts may briefly attend the firm’s holiday party); New York Advisory Opinion 2006-170 (a judge may attend a holiday party sponsored by law enforcement agencies if the judge avoids any actions that may be perceived to advance the private interests of the organization or of individuals attending or that may otherwise create an appearance of impropriety); New York Advisory Opinion 2007-211 (a judge may not attend a holiday party hosted by a member of Congress and paid by campaign funds even if the host is a friend); Pennsylvania Informal Advisory Opinion 12/1/2009 (a judge may not attend a holiday reception that is a fund-raiser held by a judge’s-elect’s campaign committee); South Carolina Advisory Opinion 4-1999 (a judge may attend a Christmas party sponsored by an entity that occasionally appears before the judge).

Wedding fees

Some states have provisions governing whether a judge may accept an honorarium for performing a wedding ceremony in the code of judicial conduct, a court rule or directive, a statute, or a judicial ethics advisory opinion.

In some states, a judge cannot personally accept a fee for solemnizing a marriage regardless when or where the marriage is performed.

For example, the Illinois judicial ethics committee has advised that a judge may not accept a fee, gift, gratuity, or compensation of any kind for solemnizing a marriage even if the ceremony will be held outside normal working hours and at a location other than the courthouse.  Illinois Advisory Opinion 1995-14.  The committee reasoned that, by accepting such a gift, a judge would be improperly receiving compensation for services in addition to the judge’s salary, which is prohibited by court rule.  Further, the committee concluded, the fee would constitute a “gift” given in return for an act performed in an official capacity, which is prohibited by the code of judicial conduct.

The states that prohibit judges from accepting fees for performing marriages are:  Illinois, Missouri, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Carolina, and West Virginia.

Other states, however, distinguish between marriages that take place during regular court hours and those that take place outside of court hours, prohibiting a judge from retaining honorariums for the former but allowing them for the latter.  Rule 3.16 of the Arizona code of judicial conduct, for example, allows a judge to “charge a reasonable fee or honorarium to perform a wedding ceremony during noncourt hours, whether the ceremony is performed in the court or away from the court,” while prohibiting a judge from charging or accepting “a fee, honorarium, gratuity or contribution for performing a wedding ceremony during court hours.”  The states with this type of rule are Arizona, California, Colorado, Florida, Georgia, Indiana, Iowa, Nebraska, New York, Utah, Washington, and Wyoming.

In Wisconsin, the distinction turns on where the marriage is performed; a judge may not accept a fee for marriages performed in the courthouse, regardless what day or time of day.

In Alabama, Louisiana, Mississippi, and Texas, a judge is allowed to receive a fee for performing a marriage regardless when or where the ceremony takes place.

Even in circumstances in which a judge may accept fees, there are restrictions on promoting a judicial wedding “business.”  For example, the Minnesota Board on Judicial Standards privately admonished a judge for promoting his wedding business by maintaining a web-site that identified and pictured him as a judge and by appearing as an exhibitor at a wedding trade show where he personally solicited attendees to hire him.  Minnesota Private Discipline Summaries 2009-113.  See also Rule 3.16(C), Arizona code of judicial conduct (“A judge shall not advertise his or her availability for performing wedding ceremonies”) ; California Judges Association Judicial Ethics Up-date, at 15 (2001) (“A judge may not advertise via a web site or print media to solicit business to perform weddings for a fee”); Colorado Advisory Opinion 2007-5 (a judge may not advertise her availability to perform wedding ceremonies by sending fliers to wedding planners and may not otherwise solicit business as a wedding officiant); Minnesota Summary of Advisory Opinions MN-2004 (it is inappropriate for judges to advertise in newspapers to perform weddings); New York Advisory Opinion 2008-74 (a judge may not engage in the “business” of performing marriages, solicit requests for such services as a for-profit business, or otherwise actively seek to be engaged in such activity); Texas Advisory Opinion 193 (1996) (a justice of the peace may not advertise “justice of the peace weddings” in the telephone book); Texas Advisory Opinion 292 (2006) (a judge may not directly solicit couples as they leave a county clerk’s office with their marriage licenses to perform their ceremony for pay); Washington Advisory Opinion 1991-14 (a court may put wedding information in the white pages of the telephone directory, but the judges should avoid any appearance that they are using the listing to solicit weddings or otherwise personally benefit).

A longer version of this post will appear as an article in the spring issue of the Judicial Conduct Reporter, to be published in May.  You can sign up to receive notice when a new issue of the Reporter is available.