Financial dealings of US Supreme Court Justices Clarence Thomas and Neil Gorsuch, along with media reporting of luxury vacations and other extracurriculars, illuminate the insubstantial ethics rules governing Supreme Court justices.
The Supreme Court has largely exempted itself from ethics regulations that apply to other federal judges, treating those as guidance with voluntary compliance. But while important, the Supreme Court is only a small part of the judiciary, which consists of thousands of state judges and hundreds of lower federal judges.
What rules framework is applicable to these judges, especially for gifts and hospitality from lawyers who appear before them? To stay on the right side of the ethical line, an attorney must examine the codes applicable to both judges and lawyers, and the interplay between them.
The Rules for Judges
Other federal judges are subject to the five ethical canons of the Code of Conduct for United States Judges, promulgated by the Judicial Conference of the United States. Canon 4(d)(4) says a judge “should comply” with Judicial Conference Gift Regulations, which define a “gift” to include “gratuity, favor, discount, entertainment, hospitality, loan, forbearance or other similar item having monetary value.”
It excludes “social hospitality based on personal relationships” as well as “modest items, such as food and refreshments, offered as a matter of social hospitality.”
A federal judge may not accept “gifts” from those having business with the judge’s court, or others whose interests may be substantially affected, with exceptions, such as if the gift is from a relative or friend whose appearance before the court would cause the judicial officer to recuse from the matter anyway.
Ethics rules applicable to state court judges are a bit more patchwork, but a majority of states have adopted a version of the ABA Model Judicial Code’s four general canons, with specific subsidiary rules. Canon 3, Rule 3.13, bars acceptance of “gifts … or other things of value” if prohibited by law or if it would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
But the model rule permits gifts, without reporting, of “ordinary social hospitality,” “items with little intrinsic value,” or from people whose appearance before the judge would cause recusal anyway. The rule permits acceptance of gifts, with reporting, from parties or lawyers who have or are likely to come before the judge—although this may cause recusal under other rules.
The Rules for Lawyers
At federal and state levels, apart from litigant motions to disqualify judicial officers in particular cases, the rules are largely aspirational, with uneven and infrequent enforcement beyond peer pressure. In contrast, the ABA Model Rules of Professional Conduct concerning lawyers, adopted in various versions in all states, are more frequently enforced and carry significant penalties for lawyers, including suspension and disbarment.
ABA Model Rule 3.5(a) prohibits a lawyer from seeking to “influence” a judge by means “prohibited by law.” Many authorities read Rule 3.5 together with Model Judicial Code Rule 3.13(B) to prohibit lawyer gifts that a judge could not accept, such as those beyond “ordinary social hospitality” and “items with little intrinsic value.”
What constitutes “ordinary social hospitality” depends upon the significance of the gift—whether it would be perceived as “influence” or just something that happens in social contexts. For example, a lawyer friend hosting an infrequent local golf outing as a friend doesn’t carry the same weight as hosting a bucket list trip to an exclusive course.
The likelihood or frequency of appearance before the judge is also part of the “influence” question. If a lawyer friend making a gift would never appear before the judge, or the judge would disqualify from a case involving that person, an issue of “influence” is unlikely unless other factors are in play.
In addition, gifts, such as for a retirement, don’t violate the standard when made on behalf of a large group, such as a bar association, with donations made anonymously or in circumstances that do not create “influence.”
But, with these caveats, it’s clear that gifts by lawyers of vacation trips, financial arrangements, or other things of value such as those in the news recently, can and do subject lawyers to professional discipline.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Mark Hinderks leads Stinson’s legal ethics and professional responsibility practice and is the firm’s former managing partner.
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