Ethics Opinions

Opinion 09-04

Summary An attorney who wishes to offer social gifts and other hospitality to judges and court personnel must consult both the Rules governing lawyers’ conduct and the rules governing judges’ conduct and then must engage in a delicate balancing of many factors before concluding that any particular activity is permissible or prohibited.                                                                                                                                                              Facts:   An attorney inquires whether she may make social gifts to judges, magistrates, and/or their support staff and may take any such person out for a meal.   

Discussion:   Although we cannot give definitive advice with respect to this very general inquiry, we think it important to set forth some of the guidelines that lawyers should consider in connection with this inquiry.  Massachusetts Rule of Professional Conduct Rule 3.5(a)(1) states that “A lawyer shall not seek to influence a judge . . . or other official by means prohibited by law.” Comment 1 to that Rule states that “Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in S.J.C. Rule 3:09, the Code of Judicial Conduct, with which an advocate should be familiar.”  The Rules of this Committee do not permit us to advise with respect to matters of substantive law, and so we may not address the various criminal statutes that may be relevant. But the Code of Judicial Conduct is quite relevant to this inquiry because Massachusetts Rule of Professional Conduct 8.4(f) in effect provides that a lawyer may not offer anything to a judge that the judge is forbidden to accept.

 

            Rule 4D(5) of the Code of Judicial Conduct provides:

 

A judge shall not accept, and shall urge members of the judge’s family residing in the judge’s household not to accept, a gift, bequest, favor, or loan from anyone except for:

 

(a) a gift incident to public recognition of the judge, provided the value of the gift does not exceed the amount requiring reporting under Section 4D(5)(h) and provided the donor is not an organization whose members comprise or frequently represent the same side in litigation (or is not an individual or individuals so situated); a gift of books, tapes and other resource materials supplied by publishers on a complimentary basis for official use; or an invitation to the judge and the judge’s spouse or guest to attend a bar related function or an activity devoted to the improvement of the law, the legal system, or the administration of justice, provided that if the value of the invitation and any food, travel, and lodging associated with the invitation exceeds the amount requiring reporting under Section 4D(5)(h), the value of the invitation and such associated items shall be reported under Section 4H;

 

(b) a gift, award, or benefit incident to the business, profession, or other separate activity of a spouse or other member of the judge’s family residing in the judge’s household, including gifts, awards, and benefits for the use of both the spouse or other family member and the judge (as spouse or family member), provided the gift, award, or benefit could not reasonably be perceived as intended to influence the judge in the performance of judicial duties;

 

(c) ordinary social hospitality;

 

(d) a gift from a relative or friend, for a special occasion, such as a wedding, anniversary, or birthday, if the gift is fairly commensurate with the occasion and the relationship;

 

(e) a gift, bequest, favor, or loan from a relative or close personal friend whose appearance or interest in a case would require disqualification under Section 3E;

 

(f) a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges;

 

(g) a scholarship or fellowship awarded on the same terms and based on the same criteria applied to other applicants; or

 

(h) any other gift, bequest, favor or loan, only 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; and, if its value exceeds $350.00, the judge reports it in the same manner as the judge reports compensation in Section 4H. However, a gift, bequest, favor, or loan of the type set forth in Sections 4D(5)(a), 4D(5)(b), 4D(5)(f) or 4D(5)(g) that does not meet the requirements set forth there may not be accepted under the authority of this Section 4D(5)(h).

 

The Commentary to Rule 4D5(c) states that “[i]n accepting ordinary social hospitality from members of the bar, a judge should carefully weigh acceptance of the hospitality to avoid any appearance of bias.”

 

            The Supreme Judicial Court’s Committee on Judicial Ethics, which gives official advice to Massachusetts judges on ethics matters, has addressed the question of the limits of the “ordinary social hospitality” exception in its Opinion 2004-9. This Opinion is important for lawyers as well as for judges, and we are therefore reproducing it in full.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CJE Opinion No. 2004-9

 

Maintaining Social Relationship With Neighbor, an Attorney Who Practices In Judge’s Court

 

             You have requested guidance from this committee on how much social interaction, if any, you may have with an attorney who practices before you.

 

           Background. You have recently moved to a secluded cul de sac on which there are four houses. Two of the houses are owned and occupied by attorneys. One of the attorneys, attorney A, appears regularly in the court in which you sit and has appeared before you. The other attorney, attorney B, never appears before you.

 

           Your neighbors socialize with each other frequently and are sensitive to the issues you raise. For example, when attorney B has a gathering at his house, he never invites both you and attorney A. You have also refrained from attending gatherings at attorney A’s house, although he invites others from the neighborhood and would invite you if you were not a judge. You have continued to hear cases in which attorney A has appeared but have confined your social contact to an occasional greeting.

 

           You have posed the following specific questions concerning the nature and scope of permissible social contact with attorney A.

 

          1. May you continue to permit attorney A to practice before you if you follow your current practice of limiting social contact to an occasional greeting when you see him?

 

           2. May you attend a dinner or other gathering at a neighbor’s home, other than attorney A’s home, where attorney A and his wife are also invited guests? Would it make a difference if only the neighbors attend? May you attend and socialize with A’s wife if he does not also attend?

 

           3. May you attend a function such as a clambake at attorney A’s home? Would it make a difference if only the neighbors were invited and not individuals from outside the neighborhood?

 

           4. May you invite the neighbors, including attorney A and his wife, to your house for a gathering? Does it make a difference if only the neighbors attend and no individuals from outside the neighborhood attend?

 

           5. May you accompany all of your neighbors, including attorney A, to a group dinner at a local restaurant?

 

           6. May you go with some or all of the neighbors for a trip on attorney A’s boat?

 

           7. May you go on an out-of-state ski trip with some or all of the neighbors, including attorney A?

 

           Regarding questions 6 and 7, you ask whether it would make a difference if only the neighbors went on these trips and no other members of the public attended. Also, assuming your relationship with attorney A progresses past the occasional greeting stage, you ask whether, in cases in which A appears before you, a disclosure informing the parties that you are neighbors and have a social relationship would “cure” or obviate ethical concerns. You contemplate giving the parties an opportunity to elect that you be recused.

 

           Discussion. This committee cannot answer definitively each of the questions you ask or specify the exact degree of social contact that you may have with attorney A. The committee historically has been reluctant to advise judges in making specific decisions such as this on a case by case basis. See CJE Opinion No. 2002-9. Each case is fact specific. The committee can, however, provide you with the following general guidance that may inform your decision as to whether any social interaction and relationship with this attorney could create the appearance of impropriety and raise the issue of recusal.

 

           The Code of Judicial Conduct does not require that you abstain from all contact with attorney A, except perhaps when he is appearing before you in an ongoing case or when you have one of his cases under advisement. Some degree of socializing is permitted, provided you do not create either the need for frequent recusal or the reasonable appearance that your impartiality would be compromised. Sections 2A, 2B, 3E, and 3F are relevant to the issues you raise.

 

           Section 2A provides that a judge shall “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Section 2B requires that “[a] judge . . . not allow . . . social . . . relationships to influence the judge’s judicial conduct or judgment . . . nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge.” The commentary to Section 2B states that “[a] judge should be careful to avoid developing excessively close relationships with frequent litigants — such as municipal attorneys, police prosecutors, assistant district attorneys, and public defenders — in any court where the judge often sits, if such relationships could reasonably tend to create either an appearance of partiality or the likely need for later disqualification under Section 3E (1).” Section 3E (1) provides that a judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned. Subsections (a)–(h) of Section 3E(1) outline mandatory recusal situations. Specifically, Section 3E(1) (a) provides that a judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned because “the judge has a personal bias or prejudice concerning a party or a party’s lawyer.” Remittal of disqualification is not available in cases in which the judge is disqualified under Section 3E(1)(a). See Section 3F(2).

 

           The principle of impartiality is fundamental to inspiring confidence in the integrity of our legal system. But judges do not live in ivory towers. “Judges, after all, must live in the real world and cannot be expected to sever all of their ties with it upon taking the bench. Nor would it be entirely beneficial to the judicial process for judges to isolate themselves from the rest of society. Involvement in the outside world enriches the judicial temperament and enhances a judge’s ability to make difficult decisions.” J.M. Shaman, S. Lubet & J.J. Alfini, Judicial Conduct & Ethics §4.01, at 108 (3rd ed. 2000). Judges obviously know lawyers, some of whom may have been their law school classmates, former associates, or members of the same clubs and bar associations. Id. See also id. at §4.15 (discussing recusals based on social relationships with parties, witnesses, and attorneys).

 

           Having a social relationship with an attorney who appears before you entails a balancing process. On the one hand, you should not be discouraged from having social or extrajudicial relationships; indeed, as noted, a judge’s effectiveness can be enhanced by these relationships. On the other hand, the obvious problem of the appearance of bias and favoritism exists when a friend or associate appears before you. The test is whether these social relationships interfere with the discharge of your judicial responsibilities. The mere opportunity for exposure to extrajudicial influence does not require recusal, but you should be mindful of the enhanced danger of inadvertently being exposed to extrajudicial information concerning a case that you are hearing or one with which you may become involved. You must also be wary of accepting any gift or favor, other than routine hospitality, from any individual who is likely to appear before you.

 

           You are the ultimate arbiter of whether you have an excessively close or personal relationship with the attorney or have created that appearance. Where that line is drawn is a decision that you will have to make. In Lena v. Commonwealth, 369 Mass. 571 (1976), the Supreme Judicial Court provided guidelines for consideration of recusal. That case’s two-part test has a subjective and an objective component. Faced with a question of the capacity to rule fairly, a judge should first consult his or her own emotions and conscience. If that internal or subjective test of freedom from disabling prejudice is passed, the judge must then attempt an objective appraisal of whether participating in the proceeding would create the appearance that his or her impartiality might reasonably be questioned. Id. at 575. Even if you believe you could be fair, would disinterested observers, fully informed of the nature of your social relationship with attorney A, entertain significant doubt that justice would be done? You may genuinely believe that you will be capable of not considering your relationship with the attorney when he appears before you, but “partiality is more likely to affect the unconscious thought processes of a judge than he or she may realize.” J.M. Shaman, S. Lubet & J.J. Alfini, Judicial Conduct & Ethics, supra at 108.

 

           In making your decision it is appropriate for you to consider the frequency with which the attorney appears before you, the nature and degree of your social interaction, and the culture of the legal community where you preside. For example, how many attorneys practice in your court and how likely is it that trips to public venues, such as restaurants, or boating excursions and vacation trips will become known to local practitioners? There is no easy litmus test to apply. Attending dinners and functions at homes on the cul de sac may appear to disinterested third parties and lawyers to connote more of an intimate social relationship than public outings. You are also more likely in those circumstances to learn directly, or indirectly, about information that concerns a matter that is before you or might come before you. If that were to happen, you would be required to recuse yourself in accordance with Section 3(E)(1)(e).

 

           Given the parameters discussed herein, limited social contact with attorney A may not require recusal. You would be wise to avoid recurring contact with the attorney in circumstances that would create the reasonable perception that you and he have a close personal relationship. Occasional gatherings in small groups may be appropriate as opposed to intimate dinners. You should be circumspect of accepting any gifts or favors from the attorney. In this regard you should consider the propriety of accepting social hospitality on the attorney’s boat. The committee advises you that attending the out-of-state ski trip, even accompanied by neighbors, might violate Section 2B if such activity would create or contribute to the perception that the attorney had a special relationship with you. See, e.g., United States v. Murphy, 768 F. 2d 1518 (7th Cir. 1985) (discussing recusal under 28 U.S.C. §455, which tracks Canon 3, in circumstances where judge and attorney were such close friends that their families vacationed together; holding that this type of social relationship implies special willingness to accept and rely on attorney’s representations).

 

           In addressing the question whether you may or should adopt a per se policy of informing the parties about your relationship and then giving them an opportunity to “elect” that you be recused, the committee reminds you of the Lena test and the determination you must make regarding whether you should sit. As your relationship with attorney A evolves, your obligations under Lena v. Commonwealth, supra, are ongoing. You should also remember that remittal of disqualification, the process in which the parties make a decision outside the presence of the judge not to seek recusal, is not an available option in some cases. See Sections 3F and 3F(2). Moreover, as the committee has observed before, parties may sometimes feel coerced into refraining from seeking recusal, and you must therefore be careful to insure that their decisions are truly voluntary. See CJE Opinion 2001-5. In considering whether you make remittal your per se policy whenever attorney A appears before you, you should consider whether the litigants and lawyers would feel coerced in such circumstances and are likely to be candid. You may also consider the availability of other judges to hear attorney A’s cases and the effect your recusal would have on case management and scheduling.[1]

 

           In sum, the two-part test for recusal outlined in Lena v. Commonwealth, supra, contains both an objective and a subjective component. You should consider both parts in deciding whether to recuse yourself from attorney A’s cases. If you decide that recusal is warranted but that remittal is appropriate, the committee is of the opinion that you should follow the procedures set out in Section 3F of the Code, paying particular attention to insuring that attorneys and their clients are afforded a noncoercive atmosphere in which to make the choice that the section requires.

 

 

     This Committee is not in a position to give any more definitive advice than the official Advisory Committee on Judicial Ethics was able to give to judges. It seems clear from that Committee’s Opinion that an attorney’s offer of hospitality to either the judge (or the judge’s support staff) would put a careful judge in an awkward position. The judge would have to make a decision on which side of the line acceptance of specific forms of hospitality would fall. We cannot advise that an attorney would be on the safe side in making the invitation insofar as the Rules of Professional Ethics are concerned. Prudence may suggest that at least some judges would not be happy with being presented with a question requiring them to decide a question involving their own ethical responsibilities.

 

 

 

This advice is that of a committee without official governmental status.

 

This opinion was approved for publication by the Massachusetts Bar Association’s House of Delegates on January 15, 2009.

 



[1] Your court’s web site indicates that you are one of only a small number of judges who sit in your county.

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