‘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.