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Opinion

Opinion CJE Opinion No. 90-3

Date: 08/23/1990
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Acceptance of Complimentary Books

You have requested an opinion concerning a letter from an attorney received recently by the various justices of the Probate and Family Court Department of the Trial Court. The attorney and his co-author propose to give each Probate justice a complimentary copy of their new, four-volume set of books on practice in the Probate and Family Courts. The value of the set is approximately $250. The attorney practices extensively in these courts. It is your understanding that "the publisher does not regularly give these volumes away on a complimentary basis." You have inquired whether acceptance of these volumes is in violation of Canon 5(C)(4)(a) or (c).

Canon 5(C)(4) sets out a blanket prohibition on the acceptance of gifts by a judge or by the members of his family, unless the gift should fall within one of three delineated categories. The first of these, Canon 5(C)(4)(a), allows a judge to receive a gift of nominal value incident to public recognition of him, or books supplied by publishers on a complimentary basis for official use. The books in question are of more than nominal value and are not incident to recognition of the judges by the public. While the books in this case are being sent by the publisher, the publisher does not normally give complimentary copies and is doing so in this case at the request of the authors. This arrangement is tantamount to a gift from the authors. Consequently acceptance is not authorized by Canon 5(C)(4)(a).

The category of exceptions set out in Canon 5(C)(4)(b) is not applicable to the situation you describe.

Canon 5(C)(4)(c) permits a judge (or a member of his family) to accept any other gift "only if the donor is not a party or other person whose interests have come or are likely to come before him" and further subject to a requirement that, if the value of the gift exceeds $100, it must be reported on the financial disclosure form required of judges by Canon 6(C). In the view of the committee, the attorney, as a frequent practitioner in the Probate and Family courts, must be regarded as "a person whose interests have come or are likely to come before [the judges]" or those courts. In many circumstances a lawyer's fee is determined in part by the results his client obtains in the litigation. See Cummings v. National Shawmut Bank, 284 Mass. 563, 569 (1933); Stratos v. Department of Public Welfare, 387 Mass. 312, 321 (1982); Guardianship of Hurley, 394 Mass. 554, 561-562 (1985). See also Canons of Ethics and Disciplinary Rules, Canon 2, Disciplinary Rule 2-106(B)(4), 359 Mass. 808 (1971). Apart from such a direct financial interest in particular litigation, a lawyer has a general (and proper) professional interest and a long-term financial interest in achieving a reputation for obtaining satisfactory results for his clients in litigation.

Accordingly, it is the opinion of the Committee that the justices of the Probate and Family Courts are not permitted by Canon 5(C)(4) to accept the books in question.

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