Opinion  CJE Opinion No. 2003-1

Date: 01/28/2003
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Receiving Award from Chamber of Commerce

The Greater Boston Chamber of Commerce has notified you of its intention to present you with a prestigious award at an upcoming annual awards luncheon. You have asked the Committee on Judicial Ethics whether you may accept that award.

According to your written request, the material from the chamber that you enclosed with your request, and the chamber's web site, you were nominated for the award by the president of the undergraduate college you attended. The award is presented by one of the chamber's divisions to honor the accomplishments of individuals in the Greater Boston business community.(1) You have been selected to receive the award for "Achievement in Management - Government." Five other awards also will be presented at the luncheon: "Achievement in Business," "Achievement in Management - Private Sector," "Achievement in Management - Non-Profit," "Emerging Executive," and "Lifetime Achievement." All of these awards, save yours, will be presented to individuals who hold executive positions in business corporations throughout the Greater Boston area.

 The awards will be presented at a luncheon that the chamber expects approximately 1,000 persons to attend. Individual tickets to the luncheon are priced at $60; tables for ten persons can be reserved for $750. Purchasers of a table receive name recognition in a program booklet. The chamber's web site states that the luncheon is "sponsored by" certain nonprofit and for-profit entities, including a large Boston law firm. Your letter states that the luncheon is not a "fundraiser" for the chamber or any of its divisions, and that ticket sales are designed solely to cover the event's cost.

In responding to your request, the committee is required to concern itself solely with the Code of Judicial Conduct. See S.J.C. Rule 3:11 (2).(2) Insofar as the code is concerned, three aspects of the luncheon present difficulties. The first is the sale of tickets. Canon 5 (B) (2) states that a judge may not be the guest of honor at an organization's fundraiser. A "fundraiser" is an event where tickets are priced to exceed the costs of the function, see C. Gray, A Judge's Attendance at Social Functions, Bar Association Functions, Civic and Charitable Functions and Political Gatherings, at 9 (American Judicature Society 1996), and the committee has interpreted Canon 5 (B) (2) broadly to prohibit receipt of awards if any aspect of the award ceremony is designed to raise funds for the sponsoring organization. See, e.g., CJE Opinion 92-4; CJE Opinion 99-17.

 In this case, it is apparent that the cost of a table for ten people is $150 more than the cost of ten individual tickets. The premium entitles the table purchaser to recognition in the event's program booklet. If that premium does more than cover some portion of the luncheon's costs, then the event is a "fundraiser" within the meaning of Canon 5 (B) (2). See CJE Opinion 92-4. From the content of your letter, however, it is more likely that the premium covers event costs that are unmet by the sale of individual tickets. Even if that is so, announcement that you are an award recipient may serve as an inducement to purchase tables with the attendant program recognition. Such an inducement would, however unintentionally, violate Canon 2 (B) by lending the prestige of your office to advancing the chamber's interest in a deficit-free luncheon.

A second issue arises out of the partial sponsorship of the luncheon by a large Boston law firm. Canon 2 (B) prohibits a judge from "convey[ing] or permit[ting] others to convey the impression that they are in a special position to influence him" or her. In CJE Opinion 2002-12, the committee said that "[n]o extended discussion is required to support the proposition that Canon 2 (B) prohibits judicial attendance at a public affair hosted by a private group or groups solely to honor the judicial attendees." In that opinion, the committee went on to say that judicial attendance at a law school function held to honor graduates who had become judges would not be permissible if the costs of the event were underwritten by publicly announced sponsors. The committee took a similar view in CJE Opinion 2000-3 when, in interpreting Canon 5 (C) (4), it said that:

"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."

To be sure, the law firm's sponsorship of the chamber's award luncheon is slightly different. According to your letter, the firm is an "historic sponsor of this event, without regard to the recipient, as well as a regular sponsor of other Chamber of Commerce events." The firm's event sponsorship therefore is not dependent on the fact that a judge is receiving an award. But Canon 2 (B) is aimed at preventing pernicious impressions whether or not those impressions are accurate. Cf. In re Brown, 427 Mass. 146, 149 (1998) ("It is not enough that we know ourselves to be fair and impartial or that we believe this of our colleagues. Our power over our fellow citizens requires that we appear to be so as well"). The committee is of the view that acceptance of an award at a well-attended, well-publicized luncheon that is publicly sponsored by a law firm that regularly appears in the court where you serve would permit an impression that the law firm is in a special position to influence you even if no such influence is intended or in fact occurs.

Finally, but related, is the fact that the Chamber of Commerce is the awarding organization. The chamber is a well-recognized, and well-respected, organization dedicated to advancing and promoting the interests of the Boston business community. Indeed, the chamber's bylaws "provide that its mission includes promoting the interests of Boston's businesses." Greater Boston Chamber of Commerce v. City of Boston, 772 F.Supp. 696, 699 (D. Mass. 1991). To that end, the chamber sometimes litigates or files amicus briefs.(3) In addition, it takes positions on matters likely to affect issues that will come before the courts in various forms and fashions. For example, a portion of the chamber's web site lists its opposition to certain health care legislation because, among other things, the legislation is likely to increase litigation.(4)   Members of the chamber make regular appearances in many of the Commonwealth's courts.

Quite obviously, there is nothing even faintly improper about any of the activities just listed. Those activities, however, frequently place the chamber and its members on one side of contested -- sometimes hotly contested -- issues. In CJE Opinion 98-2, the committee opined that Canon 2 (B) prohibited a judge from receiving an award from "a private association that represents many alcohol and drug service providers." The organization in that case was a

"'trade association representing providers of alcoholism and drug abuse services in Massachusetts.' The association conduct[ed] 'aggressive lobbying' of state and federal government agencies to establish policy and obtain funding for substance abuse treatment providers. This organization also offer[ed] educational and other support services to member organizations."

In part, the committee concluded that acceptance of the award might convey the impression that the judge favored the organization's approach to the issues with which it dealt, and that the organization was in a special position to influence the judge. The committee accordingly advised the judge that she should not accept the award. The similarities between the mission of the organization described in Opinion 98-2 and the mission of the chamber lead the committee to offer the same advice here.

In sum, the committee, while recognizing the honor that this award represents, advises you not to accept it because of the award luncheon's ticket-selling arrangement, because of the law firm sponsorship of the event, and because the chamber and its members regularly take one side on contested issues in, or affecting rights asserted in, the Commonwealth's courts.

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(1) In a similar vein, the chamber's web site announcement for the luncheon states that the awards are designed to honor executives who have demonstrated excellence in business ownership, management, and lifetime achievement.

(2)  The committee cannot, and therefore does not, offer any opinion or advice regarding the applicability of G. L. c. 268, § 9A, pertaining to "testimonials." As to that statute, however, see Rep.A.G., Pub. Doc. No. 12 at 369-370 (June 8, 1966).

(3) See Opinion of the Justices, 396 Mass. 1201 (1985); Opinion of the Justices, 393 Mass. 1209 (1984); Answer of the Justices, 364 Mass. 838 (1973); Commonwealth v. Watt, 716 F.2d 946 (1st Cir. 1983); Conservation Law Foundation of New England, Inc. v. Andrus, 623 F.2d 712 (1st Cir. 1979); Commonwealth of Virginia v. C. A. B., 498 F.2d 129 (4th Cir. 1974); Greater Boston Chamber of Commerce v. City of Boston, 778 F.Supp. 95 (D. Mass. 1991); Conservation Law Foundation of New England, Inc. v. Watt, 654 F.Supp. 706 (D. Mass. 1984).

(4) See www.gbcc.org/html/policy/may16.html and www.gbcc.org/html/policy/may14.html. [Editor's note. The links in this footnote were operable at the time the opinion was written. The documents on the chamber's web site have since been moved or deleted, however, and the links are no longer operable.]

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