COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 98

Gifts to Newly Appointed Judges.

Newly appointed judges frequently are offered gifts and benefits on the occasion of their investitures. These offers, arising at or near the time of the judge's appointment, warrant an early focus on ethical guidelines.

The standards governing a judge's acceptance of gifts are set forth in Canon 5C(4) of the Code of Conduct for United States Judges and the Judicial Conference Ethics Reform Act Gift Regulations. Canon 5C(4) provides:

A judge should not solicit or accept anything of value from anyone seeking official action from or doing business with the court or other entity served by the judge, or from anyone whose interests may be substantially affected by the performance or nonperformance of official duties; except that a judge may accept a gift as permitted by the Judicial Conference gift regulations.

Depending on the circumstances, the guidance contained in Canons 2, 5, and 7 of the Code of Conduct may also bear on the propriety of accepting investiture-related benefits.

The gift regulations generally prohibit judges from accepting gifts unless the gifts fall within several enumerated exceptions. Of particular relevance are exceptions permitting judges to accept gifts in the following circumstances, described in § 5 of the regulations:

(a) a gift incident to a public testimonial . . .;
(d) a gift from a relative or close personal 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 from a relative or close personal friend whose appearance or interest in a case would in any event require that the officer or employee take no official action with respect to the case; . . .
(j) any other gift only if: . . . (2) in the case of a judge, the donor is not a party or other person who has come or is likely to come before the judge or whose interests may be substantially affected by the performance or nonperformance of his or her official duties . . . .

In no event do the foregoing provisions permit a judge to solicit gifts on the occasion of an investiture or otherwise. Applicable statutory provisions and the Judicial Conference gift regulations both prohibit the solicitation of gifts. As with any gift, judges should be aware that financial reporting provisions may require the disclosure of certain information. Judges should take care to observe applicable requirements. See Canon 6 of the Code of Conduct.

One common benefit offered to new judges is an offer by a private entity either to sponsor or to contribute to a reception in honor of the judge's investiture. Whether a judge may properly accept such an offer depends in part on the identity of the proposed donor and its relationship to the judge. If the donor or sponsor is a former law firm, corporate employer, business client, or colleagues, the gift regulations recognize that such an offer may properly be accepted as a gift from a friend on a special occasion, if the gift is fairly commensurate with the occasion and the relationship. It may also be accepted as a gift incident to a public testimonial. In addition, to the extent the judge plans to recuse for a period of time following appointment from cases in which the former employer, client, or colleagues appear, the judge will not be taking any official action affecting the donors and no appearance of impropriety should be created.

Likewise, receptions sponsored by bar associations generally do not present ethical concerns. They may properly be considered gifts incident to public testimonials, which may be accepted under the gift regulations. Also, as we have noted previously, "[w]hen hospitality is extended by lawyer organizations, the risk of an appearance of impropriety is markedly reduced, compared to hospitality conferred by a particular law firm or lawyer." Advisory Opinion No. 17.

Concerns may be presented with respect to other prospective donors. Where the proposed donor is a for-profit company that has no pre-existing or longstanding relationship with the judge, permitting the company to host an investiture reception would necessitate the judge's recusal from cases involving the company. This might also "permit others to convey the impression that they are in a special position to influence the judge," which would not be consistent with Canon 2B of the Code of Conduct for United States Judges.

Some gifts may be impermissible because acceptance would be interpreted as endorsement of a donor or its activities, which may be inconsistent with a judge's independence and impartiality. Judges are advised not to associate themselves with entities that are publicly identified with controversial legal, social, or political positions or that regularly engage in adversary proceedings in the federal courts. See Canon 5B(1). Under Canon 7, judges are also advised to refrain from joining political organizations or engaging in political activities. Donors engaging in these sorts of activities should not be permitted to serve as host or sponsor of a reception.

It is also common for judges to receive tangible gifts and mementoes in connection with their appointment and investiture. Judges may properly accept such gifts, consistent with the provisions outlined above. The Code of Conduct and the gift regulations recognize the propriety of accepting appropriate gifts, from friends, relatives and colleagues, to mark this special occasion and serve as a form of public testimonial. Examples of gifts the Committee has found to be appropriate include: a judicial robe given by former law partners; a clock given by a bar association; a chair given by former state judicial colleagues; and a gavel and $500 monetary gift from a former client.

Acceptance of a gift offered in connection with a judge's investiture may necessitate the judge's recusal from matters involving the donor. In many instances, the donors are likely to be persons whose appearance in a case would in any event necessitate the judge's recusal, at least for some period of time. These include former law partners, close friends, and former clients. Where the gift is given by a group and the cost is shared proportionately, recusal may not be required if the amount of each individual contribution is relatively small. A judge's determination whether to recuse, and for how long, should be guided by the standards set forth in Canon 3C(1) of the Code of Conduct.

March 17, 2000