| Date: | 02/12/2014 |
|---|---|
| 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.
You have asked the Committee on Judicial Ethics for its opinion on the propriety of your acceptance of an award for judicial excellence at a bar organization event. In the past, the event has been sponsored by a relatively small number of law firms and law-related service providers. Last year the event was sponsored by 19 law firms and 4 law-related service providers. These sponsors contribute an amount that exceeds the ticket price, at various levels using the terms: "Benefactors," "Friends" and "Patrons." This entitles them to special recognition in connection with the event. Most, if not all, of last year's sponsoring law firms and some of the law-related service providers have had substantial, recurring business before the courts of the Commonwealth. Although the names of sponsoring firms and businesses are not available at this time for the upcoming event at which your award is to be given, the Committee understands that the sponsors again will be firms that regularly appear before the courts, including your court.
The Committee has been advised that proceeds from the event that exceed the cost of the event will be used for support of the host organization's projects. The invitation for the event will contain your name as one of the award recipients and will solicit sponsorships from law firms and businesses. The program for the event will prominently display the names of and information about the sponsoring firms, as well as the names of the award recipients at the event.
Because your response regarding acceptance of the award at the event was due prior to the time that the committee believed that it could issue a formal opinion, the committee informally advised you that it was of the opinion that you may accept the award, but may not attend the event. Furthermore, you should make clear to the bar organization hosting the event that it may not use your name in advertising or soliciting for the event. This opinion is based on our conclusion that the event is a fundraiser and that its likely sponsorship by law firms and others with recurring, substantial business before the courts does not allow your attendance pursuant to the Code and the committee's prior opinions. This opinion formally confirms this informal advice and provides a more detailed explanation.
The answer to your question in light of the facts presented is controlled by two provisions of the Code of Judicial Ethics and CJE Opinion 2009-1 (Receiving an Award at an Event Where Sponsors Have Substantial Business before the Court). Canon 4C(b)(3)(iv) provides that "[a] judge . . . shall not use or permit the use of the prestige of judicial office for fund-raising . . . ." According to the official commentary, among the proscriptions under that provision is 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 commentary states that "[a] fund raising event is one where the sponsors' aim is to raise money to support the organization's activities beyond the event itself." CJE Opinion 2009-1 noted that 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" (quoting CJE Opinion 2003-1).
As to what constitutes being a "guest of honor," the commentary notes that "a laudatory reference to a judge, not announced in advance, does not make the judge a `guest of honor' for purposes of this rule." The committee, however, has repeatedly advised that the receipt of an award at an event makes that judge a "guest of honor" for purposes of the Code. CJE Op. 2009-1 (citing CJE Opinions 89-3, 92-4 and 2003-1). There is no doubt under the committee's prior opinions that you would be a "guest of honor" at the event where the award is to be given, even if you are one among several award recipients. See, e.g., CJE Opinion 2003-1.
The next question, then, under Canon 4C(b)(3)(iv) is whether this event can be considered a "fund-raiser." In CJE Opinion 2009-1, it was somewhat unclear to the committee whether the event was a "fund-raiser." One event sponsor denied that the event was a fundraiser and indicated that the price of tickets might not cover the cost of the event. On the other hand the announcement for that event indicated that a portion of the event proceeds would be donated to a particular charity. In those circumstances, the committee did not believe it was necessary to resolve the question of whether the event was a fundraiser because it believed that the "prominent, partial sponsorship of the event by two organizations that have recurring, substantial business before the court would be inconsistent with Canon 2B." We will discuss this separate ground precluding your attending the event in detail below.
With regard to the present event, and in conjunction with your request, the event host has provided information to the committee. The committee has been informed that: "The revenue from the event covers the cost of the event. Any net proceeds are used to support the organization's operations." The committee is of the view that the structure of the ticket prices, in which sponsors pay a premium price for their tickets in exchange for special recognition and in which proceeds that exceed the cost will be used to support the host organization's other operations, meets the definition of a fundraiser. Therefore, your attendance at the event is prohibited under Canon 4C(b)(3)(iv). The committee also believes that allowing the organizers of the event to use your name in promotions, invitations, and the program for the event is inconsistent with Canon 4C(b)(3)(iv) in that it would also convey the impression that you are lending the prestige of your office to advance the fundraising interests of the main sponsoring organization. See e.g., CJE Opinion No. 99-17 ("exclusion of [guest of honor's] name and title from all literature advertising the event alleviates possible concerns about your lending the prestige of your office to the fund-raising project.").
The second pertinent provision is Canon 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." This proscription applies where a judge receives an award or gift at an event that is publicly sponsored by law firms and other entities where those sponsors have substantial business before the courts. See CJE Opinion 2009-1 (reviewing opinions from the previous twenty years). This is because receiving such an award at such a publicly sponsored event "would permit the impression that the law firm is in a special position to influence [the judge] even if no such influence is intended or in fact occurs." Opinion 2003-1.
For example, in Opinion 2009-1, the committee concluded that a judge could not attend an event to receive an award for the judge's contributions to law where that event was partially sponsored by a law firm and a consulting firm engaged in litigation support services that had substantial ongoing business before the courts. See also Opinion 2003-1 (acceptance of award at a well-publicized luncheon sponsored by law firm with substantial business before the courts inconsistent with code); Opinion 2002-12 (attending law school event honoring judges that was partially sponsored by law firms who purchased publicly acknowledged sponsorships at various levels inconsistent with Canon 2B).
The committee concludes that the same is true here. While the committee does not currently know who the sponsors will be for this year's event, based on information from last year's event, it is almost certain that several of the sponsors of the event will be law firms or other entities that have substantial regular business before the courts, including the court on which you serve. The fact that the event may be sponsored by several such firms does not alter the conclusion here. It may well be that the concern for the appearance of special influence would be substantially lessened where the event was publicly sponsored by a very large number of lawyers and firms, such as a bar association event that did not involve individual firm sponsorships. Here, however, it appears that the number of sponsoring firms will be small enough to create a potential impression of influence.
As did the committee in Opinion 2009-1, the committee here recognizes that you likely believe the sponsorship of the event by law firms with business before the courts will not influence your actions. It is also likely that the law firms sponsoring the event did not do so to curry favor or expect the sponsorship to give them influence with you, and those attending the event will likely not perceive undue influence based on the sponsorship. The concern also recognized in the Code, however, is with the appearance of a judge's impartiality to the public. "[T]he 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." Opinion 2009-1.
When considering the perception of the public, a strict reading of the code is required. We believe the committee captured this concept in Opinion 2009-1:
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.
In summary, because the event at which your award is to be given is a fundraiser and will be sponsored by law firms and entities that have substantial, regular business before the courts, the Code and the committee's prior opinions do not allow you to accept the award at the event. Furthermore, while you may accept the award, you should not allow your name to be used in invitations and promotional materials for the event. This is necessary to avoid the appearance that you are lending the prestige of the judiciary for the advancement of a fundraising event.
