Acceptance of Publishing Company's Donation of a CD-ROM Product

September 22, 1995

CJE Opinion No. 95-10

You have requested this Committee's opinion whether the acceptance of a publishing company's donation of a CD-ROM product to the Superior Court, for anticipated use by justices of that court, violates the Code of Judicial Conduct.

In your letter you informed the Committee that Lawyers Cooperative Publishing Company wished to donate to the Superior Court a CD-ROM legal research service, known as Massachusetts CaseBase. This research service includes an extensive electronic collection of Massachusetts appellate decisions and statutory law, as well as electronic linkage to Federal statutes and decisions. Also included in the service are Superior Court decisions which individual judges elect to submit.

Each subscription costs $2,795 plus a quarterly update service, costing $580 annually. There are presently seventy-six Superior Court judicial positions. If each judge availed himself or herself of the service, the total retail value of the company's initial donation would be $432,820.

Since the publication of Superior Court decisions by Lawyers Cooperative is dependent on individual judges sending copies of opinions to the publisher, Lawyers Cooperative hopes that more judges will be encouraged to send in their decisions once they have the ability to utilize CD-ROM research.

After you sent your request to this Committee concerning the applicability of the Code of Judicial Conduct, the State Ethics Commission issued an advisory opinion to you concerning the applicability of General Laws, c. 268A, §3 and §23. In that opinion, a copy of which you kindly sent to the Committee, the Commission determined that the proposed donation and its acceptance by the Superior Court would not violate the statutory provisions cited above.

The question remaining is whether the Code of Judicial Conduct prohibits Superior Court judges from accepting such a donation through their use of the research service.

 Canon 5(C)(4) provides:

"Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor or loan from anyone except as follows:

(a) A judge may accept ... books supplied by publishers on a complimentary basis for official use."

 The Massachusetts CaseBase system is the functional equivalent of "books", as that term is used in Canon 5(C)(4)(a). The essence of the CaseBase CD-ROM is the same as a book; the preservation of the written word. The intended donor is the publisher, which comports with the specific language of the statute. Compare CJE Advisory Opinion No. 90-3, prohibiting donation of a book to Probate Court judges where the gift was initiated by the author rather than the publisher.

 Thus, so long as the subscription service is used by the Superior Court judges for official, rather than personal, purposes, the acceptance of the donation does not violate the Canons.

  In reaching this conclusion, the Committee has considered the fact that the donation of the research service is not dependent on the judges agreeing to provide their written opinions to Lawyers Cooperative. Moreover, it is our understanding that, to the extent judges make their opinions available for publication, they will be made equally available to all interested publishers. We also understand that Lawyers Cooperative will not represent that the Superior Court or any of its judges endorses the subscription service.