Opinion  CJE Opinion No. 94-2

Date: 12/28/1994
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.

Table of Contents

Your letter requests the Committee's advice with respect to the propriety of paying a discounted bill for legal services provided by a close personal friend. The legal services rendered arose from a claim against you in the course of your legal practice prior to your appointment to the bench.

You indicate that the attorney discounted his fee of $8,900 to $5,000 because of your longstanding friendship. If the original $8,900 fee was customary and reasonable for the services rendered, then the discounted legal bill represents a gift with a value of $3,900. Your inquiry is whether accepting such a discounted bill violates the Code of Judicial Conduct.

Canon 2 of the Code of Judicial conduct provides that:

"A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

"B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness."

Canon 5(C)(4)(c) provides:

"(A) judge or a member of his family residing in his household may accept any other gift, bequest, favor, or loan only if the donor is not a party or other person whose interests have come or are likely to come before him, and, if its value exceeds $100, the judge reports it in the same manner as he reports compensation in Canon 6(C)."

To maintain an independent and impartial judiciary, a judge must separate his personal affairs from those of his official capacity. To preserve the integrity of the judiciary, a judge may not accept discounted services from an attorney whose interests have come or are likely to come before him. If the attorney in question were likely to appear before you, you could not accept the discounted legal service bill without violating the provisions of Canon 2.

You may not bring yourself into compliance with either Canon 5(C)(4)(c) or Canon 2 by recusing yourself from matters in which the attorney would otherwise regularly appear before you. The clear language of both Canons establishes that if the gift-giver regularly appears in front of you, you may not accept the gift. If, however, for an independent reason, the gift-giver has previously established a practice of never appearing before you, as you indicate is the case here, the Canons do not prohibit your receiving the gift, provided that in accordance with Canon 6(C) you file a report in the office of the Administrative Assistant to the Supreme Judicial Court reflecting the amount and source of the gift.

We do not wish to be understood as speaking to any question of recusal that might arise out of special facts, such as the gift-giver's identification with the interests of a particular client or clients that do appear before you.

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