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Opinion CJE Opinion No. 98-3

Date: 03/19/1998
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 or 617- 557-1048.

You have asked this Committee's advice concerning the propriety of accepting money for legal services rendered to a client when you were an attorney. In your letter, you informed us that while you were a practicing lawyer, you were employed by a law firm. In that capacity, you represented a client, which was another law firm, in suing a debtor of that client. In lieu of money to satisfy the judgment, your client accepted an interest in patents owned by the debtor. As a result of this arrangement and based on the fee agreement between your law firm and the client, your firm did not receive and was not owed a fee from the client for your legal services. Sometime thereafter you left the law firm to assume your present position as a judge.

When you left your law firm you entered into an agreement with the firm for the payment of monies due you from fees earned by the firm as a result of your services. The firm did not owe you any money for your representation of the subject client. In 1996, that client contacted you directly to inform you that it had unexpectly received money from the sale of the debtor's patents and wished to pay $5,000 for your legal work. At your direction, the former client spoke to a representative of your former law firm and informed him of the sale of the patents and the client's desire to pay for your legal work. Your former law firm is of the opinion that the client does not owe any fee based on the terms of the firm's fee agreement with the client. Additionally, the firm has told you that if the client insists on paying a fee to the firm, it will keep the entire fee. Nonetheless, the firm has told you that it will not object if the former client pays the money directly to you. The client insists that he will not pay money to your former law firm unless you receive a portion of that money.

 In your letter you state that if the client paid you money at this time it would constitute a gift. The Committee members are not privy to the terms of your former firm's fee agreement with the client or your separation agreement with the firm. We do not know whether the Internal Revenue Service would treat such payment as earned income for tax purposes. If the anticipated payment is compensation for legal services rendered by you on behalf of the client then it may justifiably be considered as a fee payment. Assuming such payment is commensurate in amount with the services provided, in that it is not unreasonable or excessive, then you may accept such fee.

However, different concerns are raised if the money is a gift to you. Canon 5 (C) (4) (c) of the Code of Judicial Conduct 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)."

This section of Canon 5 does not relieve a judge of his affirmative duty to conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary, as imposed on him by Canon 2 (A). Additionally, a judge should not convey or permit others to convey the impression that they are in a special position to influence him. Canon 2 (B). In Matter of Bonin, 375 Mass. 680, 693-694 (1978), the Supreme Judicial Court stated that disclosure of a gift does not cure an appearance of impropriety when the gift-giver or his family receives favorable treatment from the judge. In your letter you stated that you have and will recuse yourself from any cases in which any member of your former law firm or any member of the client law firm appears or is otherwise involved. This recusal determination is not based on the gift or fee at issue here but rather on your business associations with the subject law firms during your years in practice, as well as the fact that at the present time, a member of your former law firm represents you. In CJE Opinion No. 94-2, we stated that where a gift-giver had previously established a practice of never appearing before the judge, the judge's receipt of the gift was not prohibited by the Canons so long as the judge reported it in accordance with Canon 6 (C).

As you recognized in your letter, if you accept the payment at issue as a gift, you must report to both the Supreme Judicial Court pursuant to Canon 6 (C) and to the State Ethics Commission pursuant to G. L. c. 268A.


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