You have requested an opinion concerning the ethical propriety of a proposed social function honoring a judge on the occasion of his upcoming retirement.
In your request, you have stated that you and the judge were partners at a Boston law firm, albeit at different times. Each of you has continued to maintain personal friendships with members of the firm and to accept the firm's hospitality at occasional social functions. As a consequence, neither of you hears matters involving the firm in any fashion. You recently mentioned the judge's upcoming retirement to the firm's managing partner and he thereafter advised you that the firm would like to arrange a social event to honor the judge's many years of service.
As presently planned, the firm would underwrite completely the event's cost. No tickets would be sold and the invitation list would be private. Those invited would include members of the judge's family, personal friends, some of whom will be Massachusetts lawyers who presumably have appeared and will appear before the judge's court and other Massachusetts state and federal courts, active and retired judges of the judge's court and members of the court staff, a limited number of judges and court personnel of other Massachusetts state and federal courts, former law clerks to the judge, a limited number of present and former firm lawyers who practiced with the judge or with whom he maintained a friendship, and perhaps spouses of some or all of the foregoing invitees. Although no definite plans have yet been made, it is possible that the firm will present the judge with a commemorative gift at the gathering. The date for the gathering has not been set but it will likely take place either just before or just after the judge's retirement.
Two provisions of the Code of Judicial Conduct bear on your request. First, and most directly, Canon 5(C)(4) provides that "[a] judge . . . should [not] accept a gift, bequest, favor or loan from anyone except . . . (b) a judge . . . . may accept ordinary social hospitality." Second, and less directly, Canon 2(B) provides that a judge should not "lend the prestige of his [or her] office to advance the private interests of others; nor should he [or she] . . . permit others to convey the impression that they are in a special position to influence him [or her]."
In construing those provisions of the Code, committees in other jurisdictions have not reached uniform results. New York and Texas committees have issued opinions allowing judges to attend such events as the opening of an attorney's new law office, a law firm's "ordinary" holiday open house or party and 75th birthday party given for an attorney. The New York committee, however, has stated that an "ordinary" holiday party does not include a party at an expensive restaurant, a cruise or any similar affair that is expensive and lavish. Taking a more restrictive approach, New Jersey has prohibited judges from attending any holiday parties given by law firms.
The California Advisory Committee has taken the most analytical approach and has defined "ordinary social hospitality" as "that type of social event or other gift which is so common among people in the judge's community that no reasonable person would believe that (1) the donor was intending to or would obtain any advantage or (2) the donee would believe that the donor intended to obtain any advantage." The Committee believes that the California formulation is functionally related to the purposes of the relevant provision and presents an appropriate framework for determining whether a particular gift or event amounts to "ordinary social hospitality."
Application of that framework to the retirement function you have described produces two separate considerations. On the one hand, retirement parties, celebrations and dinners are a customary way of recognizing the end of one's active service in a given occupation or profession. Such parties therefore typically qualify as "ordinary social hospitality." Indeed, the Committee has on a number of occasions rendered informal opinions indicating that individuals may attend a variety of retirement parties for others.
On the other hand, judicial attendance at a retirement party hosted by a law firm whose members routinely appear before the attending judges carries with it the potential for a public perception that the law firm is, or will be, in a special position to influence the attending judges. At the very least, it is difficult to conclude that no reasonable person, particularly in this day and age, would believe that the law firm did not intend to obtain any advantage by hosting such a party. It is relevant in this regard to note that the only large gatherings at which the Code specifically sanctions judicial attendance are the bar-related and allied functions mentioned in Canon 5(C)(4)(a).
In the last analysis, the Committee is of the opinion that your attendance at a retirement party for the judge hosted by the firm would not violate the Code. Your long association with the firm, the personal friendships you have formed during that association and the fact that you do not hear cases in which the firm is involved are factors that, in combination, make the firm's invitation to you an exercise in purely social hospitality. In so saying, the Committee believes that it is possible to conjure an affair so lavish and out-of the ordinary that even your attendance might implicate the Code. From your description of current plans, however, this is not such an event.
SJC Rule 3:11(2) prohibits the Committee from rendering opinions on hypothetical questions and the Committee's Rule 3 provides that the Committee "will not render opinions . . . upon questions relating to the conduct of persons other than the requesting judge." Those limitations are based on the fact that application of the Code's many broad principles is an intensely fact-specific exercise. The Committee can say, however, that if you invited or solicited other judges to attend the retirement function and if, as a consequence, those judges did attend, such solicitation would itself raise difficult questions under the Code because the invitees might find themselves confronted with questions regarding the provisions of Canons 2(B) and 5(C)(4), notwithstanding the thoughtful steps you and the firm already have taken to avoid a broadly public association between the firm and the retirement celebration.