Opinion  CJE Opinion No. 2009-1

Date: 01/26/2009
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 an Award at an Event Where Sponsors Have Substantial Business Before the Courts

You requested advice from the Committee on Judicial Ethics regarding the propriety of attending a function at which you would be recognized for your contributions to the law. Your inquiry was apparently sparked by two aspects of the material publicly distributed to announce the function. First, the announcement stated that "[a] portion of the proceeds [of the function] goes to a charitable institution." You spoke to one of the event sponsors who told you that the references to a "donation" reflected the sponsor's intent "to make a nominal donation" to the charitable organization whether or not the event resulted in a profit. The sponsor also told you that the event was not a "fund-raiser" and "could well [produce] a loss."

Second, the announcement listed several "event sponsors." Of those, one was an established Boston law firm with considerable ongoing business in the courts of the Commonwealth. The other was a consulting firm that is frequently involved in litigation in Massachusetts courts. The firm's advertisement in the material accompanying the award announcement mentioned, among other things, the firm's expertise and competence in providing "litigation support services." Those services include provision of expert witnesses and other litigation-related support, the effectiveness of which is celebrated on the company's website.

Against that backdrop, your inquiry sought advice regarding whether you could attend the function and whether you were required to take steps to "distance [yourself] from the event and/or the honor." Because your request came in relatively close proximity to the event itself, and because the committee thought it unlikely that it would be able to provide a formal written opinion by the time the event occurred, the committee advised you informally that the presence of two prominent sponsors who had substantial business in the courts of the Commonwealth meant that your receipt of the award at the event would be inconsistent with the Code of Judicial Conduct essentially for the reasons stated in four opinions, discussed below, the Committee had issued on prior occasions. Because it was clear that the event sponsors were not involved in the selection process, however, the committee advised that you were not required to decline or otherwise distance yourself from inclusion in the group of other distinguished award recipients or from the selection committee's recognition of the considerable advances to the cause of justice for which you have been responsible. This opinion formally confirms that informal advice and discusses the rationale for it in greater detail.

Two provisions of the code are of primary importance to the questions you have raised. The first is §4C(b)(3)(iv) which provides that "[a] judge . . . shall not use or permit the use of the prestige of judicial office for fund-raising." Amplifying that broad prohibition, official commentary to the section says that "[a] judge must not be a . . . guest of honor at an organization's fund-raising event, but mere attendance at such an event is permissible if otherwise consistent with this code." The second pertinent provision is §2B which says that a "judge shall not . . . convey or permit others to convey the impression that they are in a special position to influence the judge."

Dealing first with the fund-raising provision, the committee consistently has advised judges that a "fund-raising" event is one in which "tickets are priced to exceed the costs of the function" itself. See, e.g., CJE Opinion 2003-1. See Code, Commentary to §4C(b)(3)("a fund-raising event is one where the sponsor's aim is to raise money to support the organization's activities beyond the event itself.") The committee's advice in that regard is consistent with interpretations of comparable provisions of the code in other states. See C. Gray, A Judges Attendance at Social Functions, Bar Association Functions, Civic and Charitable Functions and Political Gatherings at 9 (American Judicature Society 1996). The committee also has advised that if a judge receives an award at an event, he or she is a "guest of honor" at that event. See CJE Opinions 89-3, 92-4 and 2000 3-1. Compare CJE Opinion 98-18. See also Pennsylvania Advisory Opinion 14 (an award recipient is a guest of honor) and New York Advisory Opinion 94-16 (a judge may not receive an award in recognition of his interest in and support of children at a fund-raising dinner held by a charitable foundation).

From the material you provided, the committee is unable to determine whether the function is a "fund-raising event." On the one hand, one event sponsor says that it is not a fund-raiser and ticket sales may not even cover the event's costs. On the other hand, it is not clear that the sponsor had in mind the definition of "fund-raiser" recited above. Moreover, as noted earlier, the event notice does say, that "[a] portion of the proceeds goes to [a charitable organization]." The committee has not had occasion to determine whether an event that advertises itself, at least in part, as a fund-raiser should be viewed as a "fund-raiser" for purposes of the code even though the event's sponsor anticipates that ticket proceeds may not cover the event's costs and intends to contribute to a target organization even if the event runs at a loss.

 It is unnecessary to resolve the "fund-raiser" question here, for your attendance at the event would be inconsistent with the code if either the event's fund-raising aspect or its sponsorship aspect created an obstacle. And, as stated earlier, the committee is of the opinion that prominent, partial sponsorship of the event by two organizations that have recurring, substantial business in the courts of the Commonwealth means that your attendance at that event would be inconsistent with §2B.

In a series of opinions issued over the last twenty years, the committee consistently has advised that publicly "sponsored" gifts and events are typically inconsistent with the provisions of §2B. Indeed, the very first formal opinion the committee issued dealt with the issue of sponsored gifts. There, a division of the District Court created an interior decoration plan, a component of which was to be a series of donated flags displayed in the main, public hallway along with plaques describing the local businesses and attorneys who had made the donations. The committee concluded that the plan would be inconsistent with §2B because "the presence of the plaques . . . in the public hall of the Court may create a public impression that certain attorneys, firms, or area businesses stand in the favor of the Court. In cases in which a donor is a party or an attorney, the Court's appearance of neutrality and impartiality will be compromised regardless of the actual feelings of the judge."

Similarly, in Opinion 2002-12, the committee advised a judge that attendance at a law school event designed to honor graduates who had become judges would be inconsistent with §2B if the event was partially underwritten by those who purchased publicly acknowledge sponsorships at various monetary levels. Likewise, in Opinion 2003-1, the committee advised a judge that acceptance of an award at an event sponsored by a law firm having substantial business in the courts of the Commonwealth would be inconsistent with the code because "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."

Effective October 1, 2003, after those opinions were issued, the Supreme Judicial Court substantially revised the code, but made no substantive change to §2B and said nothing in the new code's extensive official commentary undercutting the opinions just discussed. Thereafter, in Opinion 2004-3, the committee advised a judge that public sponsorship of certain events held in connection with a national convocation of judges would raise problems similar to those discussed in Opinion 89-1. Most recently, in Opinions 2007-4 and 2007-6, the committee advised that it would be inconsistent with the code for a judge to be a featured speaker at a conference hosted by regular litigants in the Commonwealth's courts.

The committee believes that the same advice applies here. The sponsoring law firm is one of Boston's major firms and appears regularly in courts throughout the Commonwealth, including the court on which you sit. The sponsoring litigation support firm is a well-known advisor in the area of its expertise and visibly advertises the overall role it plays in supporting lawsuits pending in Massachusetts and elsewhere. Under those circumstances, acceptance of an award at a function the two firms prominently sponsor, albeit in collaboration with others, would not be consistent with the code's requirement that judges avoid creating, or permitting others to create, the impression that they are in a special position to influence the judge's decisions.

The committee recognizes that, to some, interpreting the code in the fashion just described may seem overbroad. No doubt you believe that your actions in any particular case will not be influenced by the firms' sponsorship. Likewise, the firms themselves may expect that their sponsorship will have no effect on what you do and most, if not all, of those who attend the function will see no lurking specter of undue influence. But "[i]t is not enough that we know ourselves to be fair and impartial or that we believe this of our colleagues." In re Brown, 427 Mass. 146, 149 (1998), nor is it enough that the cognoscenti think us fair and impartial. Instead, the pertinent question is whether an objective, disinterested observer fully informed of the relevant facts could entertain a serious doubt about a judge's ability to handle impartially a matter in which one side was represented or assisted by a firm that had publicly sponsored a large public function at which the judge had received a major award. See J. Alfini, et al., Judicial Conduct and Ethics 4-11 (LexisNexis 2007). The committee thinks that, under those circumstances, such an observer could entertain a serious doubt about the judge's impartiality. To be sure, temporal distance between the award and the firm's appearance in the court in which you sit might tend to diminish that doubt, but you have no control over when the appearance will occur and recusal from a conflict voluntarily encountered is not always an appropriate alternative. See, e.g., CJE Opinion 97-6.

Concern with how the objective, disinterested observer likely thinks the system operates is not a concern unique to the code. Instead, that concern permeates the judicial process itself. See, e.g., Board of Selectmen of Barnstable v. Alcoholic Beverages Control Comm., 373 Mass. 708, 718 (1977)(noting that preservation of the appearance of fairness is an appropriate consideration in administrative proceedings); Commonwealth v. Jordan, 49 Mass. App. Ct. 802, 811 (2000), quoting Wheat v. United States, 486 U.S. 153, 160 (1988)("The judge has an `independent interest in ensuring . . . that legal proceedings appear fair to all who observe them.'"); Adoption of Tia, 73 Mass. App. Ct. 115, 122-123 (2008)("Our decisions and those of the Supreme Judicial Court have commented often and in a variety of contexts on the importance of maintaining not only fairness but the appearance of fairness in every judicial proceeding."). The same concern animated the Legislature's passage of a statute banning testimonials for sitting judges and others involved in law enforcement. See G. L. c. 268, §9A. That statute, which broadly defines a "testimonial" as "`any affair' by whatever name it is called, which has a purpose `similar to that of a testimonial dinner or function,'" is designed to "remove [judges and other officers the statute covers] from any suspicion of being influenced in any way because of the sponsorship, purchase of tickets, attendance or non-attendance at such affairs." 1963 Opinions of the Attorney General 110, 111. See also 1966 Opinions of the Attorney General 369.

Public confidence in a justice system's true impartiality depends at least as much on the appearance of impartiality as it does on the reality. But the appearance of impartiality can be degraded by the cumulative impact of many small incursions just as surely as it can be by a few instances of major dereliction. Accordingly, the Code of Judicial Conduct was designed to operate in a strongly prophylactic manner to prevent the subtle erosion of public confidence that, if unchecked, inevitably undermines confidence to the point of collapse. The code's prophylactic requirements do not prohibit judges from accepting all awards and they do not keep judges from appearing at all award ceremonies. But, as presently written, the code's requirements do prohibit judges from accepting awards from individuals and firms who are likely to appear in the courts where they sit and the code's requirements do prohibit judges from accepting awards at events those firms and individuals publicly sponsor.

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