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Supreme Judicial Court Rules

Code of Judicial Conduct

Supreme Judicial Court Rules Canon 3: A judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office

Effective Date: 01/01/2016
Updates: Adopted October 8, 2015, effective January 1, 2016

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Rule 3.1 Extrajudicial activities in general

A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not: 

(A) participate in activities that are reasonably likely to interfere with the proper performance of the judge’s judicial duties; 

(B) participate in activities that are reasonably likely to lead to recurrent disqualification of the judge; 

(C) participate in activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality; 

(D) engage in conduct that would appear to a reasonable person to be coercive; or 

(E) make use of court premises, staff, stationery, equipment, or other resources, except for use that is reasonable in scope, not prohibited by law, and incidental to activities that concern the law, the legal system, or the administration of justice. 

Comment 

[1] To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities. Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. Participation in both law-related and other extrajudicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system. See Rule 3.7

[2] This Rule emphasizes that when engaging in any extrajudicial activity, a judge must consider the obligations of judicial office and avoid any activities that are reasonably likely to interfere with those obligations. 

[3] Discriminatory actions and expressions of bias or prejudice by a judge, even outside the judge’s official or judicial actions, are likely to appear to a reasonable person to call into question the judge’s independence, integrity, or impartiality. Examples include jokes or other remarks that demean individuals based upon their race, color, sex, gender identity or expression, religion, nationality, national origin, ethnicity, citizenship or immigration status, ancestry, disease or disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation. For the same reason, a judge’s extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6

[4] While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive. For example, a judge’s urging a lawyer who appears in the judge’s court to assist on a time-consuming extrajudicial project would create the risk that the person solicited would feel obligated to respond favorably, or would do so to curry favor with the judge. 

[5] Paragraph (E) recognizes that reasonable use of public resources to support a judge's law-related activities advances the legitimate interests of the public and the court system

Rule 3.2 Appearances before governmental bodies and consultation with government officials

A judge shall not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official, except: 

(A) in connection with matters concerning the law, the legal system, or the administration of justice; or 

(B) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary capacity pursuant to Rule 3.8

Comment

[1] Judges possess special expertise in matters of law, the legal system, and the administration of justice, and may properly share that expertise with governmental bodies and executive or legislative branch officials by, for example, proposing new legislation, commenting on new legislation proposed by others, or proposing or commenting on amendments to existing law. The types of topics that a judge may address include but are not limited to court facilities, funding, staffing, resources, and security; terms of employment, compensation, and other benefits of judges and court personnel; personal safety of judges and court personnel; court jurisdiction and procedures; the work of specialty courts; the admissibility or inadmissibility of evidence; judicial discretion in sentencing; funding for the legal representation of indigents; access to justice; and similar matters. 

[2] In appearing before governmental bodies or consulting with government officials, judges must be mindful that they remain subject to other provisions of this Code, such as Rule 1.3, which prohibits judges from abusing the prestige of office to advance their own or others’ interests; Rule 2.10, which governs public comment on pending and impending matters; and Rule 3.1(C), which prohibits judges from engaging in extrajudicial activities that would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. 

[3] In general, it would be an unnecessary and unfair burden to prohibit judges from appearing before governmental bodies or consulting with government officials on matters that are likely to affect them as private citizens, such as zoning proposals affecting their real property. In engaging in such activities, however, judges must not refer to their judicial positions, and must otherwise exercise caution to avoid abusing the prestige of judicial office

Rule 3.3 Testifying as a character witness

A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned. 

Comment

[1] A judge who, without being subpoenaed, testifies as a character witness lends the prestige of judicial office to advance the interests of another. See Rule 1.3. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness. 

[2] This Rule does not preclude a judge from voluntarily testifying or otherwise vouching for the qualifications, including the character, of an applicant or nominee for judicial or court-related office, as long as the judge’s observations are based on the judge’s personal knowledge. See Rule 1.3

[3] This Rule does not preclude a judge from providing a character reference based on personal knowledge for an applicant to the bar of any state. 

[4] This Rule does not preclude a judge from responding based on personal knowledge to an inquiry from any state or federal entity, or a contractor for such an entity, conducting a background investigation in connection with an application for public employment or for security clearance

Rule 3.4 Appointments to governmental positions

A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.

Comment

[1] This Rule implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. However, a judge must assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment, see Rule 3.2, and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the importance of respecting the separation of powers, upholding the independence, integrity, and impartiality of the judiciary, and minimizing judicial disqualification. Furthermore, acceptance of extrajudicial appointments is subject to applicable restrictions relating to multiple office holding set forth in the Constitution of the Commonwealth. See Part 2, Chapter 6, Article II and Article VIII of the Amendments to the Constitution. A judge should regularly reexamine the propriety of continuing in the appointed position, as the composition and/or mission of any such committee, board, or commission may change. 

[2] A judge may represent the United States, the Commonwealth of Massachusetts, or the judge’s county, city or town on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position

Rule 3.5 Use of nonpublic information

A judge shall not knowingly disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties. 

Comment

[1] In the course of performing judicial duties, a judge may acquire information of commercial or other value that is unavailable to the public. The judge must not reveal or use such information for personal gain or for any purpose unrelated to the performance of judicial duties. 

[2] This Rule is not intended to affect a judge’s ability to act on information as necessary to protect the health or safety of the judge or a member of the judge’s family, court personnel, or any other person if consistent with other provisions of this Code

Rule 3.6 Affiliation with discriminatory organizations

(A) A judge shall not hold membership in any organization that practices invidious discrimination. 

(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should be aware that the organization practices invidious discrimination. A judge’s attendance at an event in a facility of such organization is not a violation of this Rule when the judge’s attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization’s practices. 

Comment 

[1] A judge’s public manifestation of approval of invidious discrimination diminishes public confidence in the integrity and impartiality of the judiciary. A judge’s membership in an organization that practices invidious discrimination similarly diminishes public confidence in the integrity and impartiality of the judiciary. 

[2] Whether an organization practices invidious discrimination is a complex question to which judges must be attentive. The answer cannot be determined from a mere examination of an organization’s current membership rolls, but depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members that do not stigmatize any excluded persons as inferior and therefore unworthy of membership. The purpose of this Rule is to prohibit judges from joining organizations practicing invidious discrimination, whether or not an organization’s membership practices are constitutionally protected. When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization. 

[3] Whether an organization engages in invidious discrimination is a threshold issue but not the end of the judge’s inquiry. Even an organization that does not engage in invidious discrimination may engage in practices such that a judge’s membership in the organization might erode public confidence in the impartiality of the judiciary. Before holding membership in any organization, a judge must consider whether membership would appear to undermine the judge's impartiality in the eyes of a reasonable litigant. See Rules 3.1 and 3.7

[4] A judge’s membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule. 

[5] This Rule does not apply to national or state military service

(A) 

Subject to the requirements of Rule 3.1, a judge may participate in activities of or sponsored by or on behalf of (i) legal, educational, religious, charitable, fraternal, or civic organizations, which are not conducted for profit, or (ii) governmental entities concerned with the law, the legal system, or the administration of justice. Permitted participation includes but is not limited to the following: 

(1) 

A judge may serve as a member of the organization. 

(2) 

A judge may plan and attend events and activities of the organization. 

(3)

 A judge may participate in internal discussions related to fundraising. However, a judge shall not otherwise participate in fundraising, and shall not manage or invest funds belonging to or raised by the organization unless the organization is composed entirely or predominantly of judges and exists to further the educational or professional interests of judges. 

(4) 

A judge shall not solicit contributions or members for the organization, except that a judge may solicit contributions or members from members of the judge’s family or from judges over whom the judge does not exercise supervisory or appellate authority. 

(5)

 A judge may serve as an officer, director, trustee, or nonlegal advisor of the organization, unless it is likely that the organization: 

(a) will be engaged in proceedings that would ordinarily come before the judge; or 

(b) will frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member.

(6) 

A judge may serve as a keynote or featured speaker at, receive an award or other comparable recognition at, be featured on the program of, and permit the judge’s title to be used in connection with the promotion of an organization’s event that is not a fundraising event, but shall not do so at a fundraising event except as permitted in Paragraph (6A). 

(6A) 

A judge may serve as a keynote or featured speaker at, receive an award or other comparable recognition at, be featured on the program of, and permit the judge’s title to be used in connection with the promotion of a fundraising event only if the event is sponsored by an organization concerned with the law, the legal system, or the administration of justice, and that organization promotes the general interests of the judicial branch of government or the legal profession, including enhancing the diversity and professionalism of the bar. 

(7) 

A judge may make recommendations to public or private fund-granting organizations or agencies for programs and projects, but only on behalf of organizations that are concerned with the law, the legal system, or the administration of justice. 

(B) 

A judge may encourage lawyers to provide pro bono publico legal services. 

(C)

 A judge may, as a parent or guardian, assist minor children in their fund-raising activities if the procedures employed are not coercive and the sums solicited are modest. 

Comment

[1] This Rule governs a judge's participation in a variety of activities sponsored by organizations not conducted for profit, whether public or private, and by governmental entities (collectively referred to as “organizations”). Paragraph (A) identifies the types of organizations covered by this Rule. Examples include bar associations, other not-for-profit private organizations, and court-created commissions. The first clause of Paragraph (A), “subject to the requirements of Rule 3.1,” emphasizes that even with respect to activities that are explicitly permitted by Rule 3.7, a judge must always consider whether participation would violate Rule 3.1

[1A] In considering whether participation in any extrajudicial activity would violate Rule 3.1, a judge should consider all relevant factors, including the membership and purposes of the organization, the nature of the judge’s participation in or association with the organization or event, whether the organization or its members typically advocate on one side of issues before or likely to come before the court of which the judge is a member or any court subject to the appellate jurisdiction of the court of which the judge is a member, and the number, diversity, and identity of the financial supporters of the organization or sponsors of a particular event. Although activities permitted under this Rule must be of or sponsored by an organization not conducted for profit, this requirement does not preclude the judge from participating in events of an organization that receives sponsorship or financial support from for-profit entities. A judge must avoid giving the impression that the organization, its members, or an event’s sponsors are in a special position to influence the judge, and, where appropriate, a judge must avoid giving the impression that the judge favors the organization’s mission. 

[1B] The Code explicitly encourages certain activities where the nature of a judge's participation will promote public understanding of and confidence in an independent judiciary, foster collegiality among the bar and communication and cooperation between the judiciary and the bar, enhance the judge’s ability to perform judicial or administrative duties, or otherwise further the goals of the courts. See, e.g., Rule 1.2, Comments [4] and [6]. So, for example, judges are encouraged to speak about the administration of justice to not-for-profit groups, including business and community groups and bar associations. Such speaking engagements ordinarily will not raise an issue under  Rule 3.1 even when an event or program is held in space provided by a law firm or is financially supported or sponsored by one or more for-profit entities, such as law firms or legal vendors, that do substantial business in the court on which the judge sits. If, however, fundraising is a chief objective of the event or program, Paragraph (A)(6A) governs whether a judge may be a keynote or featured speaker. Giving a presentation at an educational conference where the judge’s involvement would help to further the goals of the court system is another example of encouraged participation. Such participation would not ordinarily raise an issue under Rule 3.1 even when the conference is financially supported or sponsored by organizations or vendors that do business in the court on which the judge sits. 

[2] The restrictions in Paragraph (A)(4) are necessary because, depending on the circumstances, a judge’s solicitation of contributions or members for an organization might create the risk that the person solicited would feel obligated to respond favorably or would do so to curry favor with the judge. However, a judge may be identified by name and title as an organization’s officer, director, trustee, non-legal advisor, or member on websites, emails, letterhead, and any other communication materials created and issued by others within the organization to solicit or accept donations or to enroll members so long as comparable designations are used for other persons. 

[3] As used in Paragraphs (A)(6) and (A)(6A), a fundraising event is one for which the organizers’ chief objectives include raising money to support the organization's activities beyond the event itself. Unless that is the case, an event is not a fundraising event, even if the revenues ultimately exceed the cost. A judge may attend a fundraising event but may not participate in additional activities except as permitted by Paragraph (A)(6A). However, a judge who attends a fundraising event is not in violation of this Rule merely because a laudatory reference to or about the judge, not announced in advance, is made at the event. 

[4] Paragraph (A)(6A) permits a judge to participate in additional activities (e.g., being a featured speaker or receiving an award) at fundraising events of or sponsored by organizations concerned with the law, the legal system, or the administration of justice that serve the general interests of the judicial branch of government and the legal profession, including organizations that enhance the diversity and professionalism of the bar. The nature of such organizations makes it unlikely that a judge’s involvement would reflect adversely upon that judge’s independence, integrity, or impartiality. Organizations concerned with the general interests of the judicial branch of government and the legal profession include general purpose and affinity bar associations (e.g., county bar associations, bar associations composed exclusively or primarily of members of an ethnic group, bar associations specializing in particular practice areas but whose members take positions on both sides of disputed issues), organizations dedicated to enhancing the professionalism of the judicial branch (e.g., the National Center for State Courts), and organizations composed entirely or primarily of judges (e.g., the Massachusetts Judges Conference, the Flaschner Judicial Institute), but exclude organizations composed exclusively or primarily of lawyers who typically take one side of contested issues (e.g., plaintiffs’ personal injury bar associations, insurance defense bar associations), organizations dedicated to influencing opinion on contested legal or constitutional issues, or organizations that represent one constituency (e.g., prosecutors, criminal defense counsel). 

[5] In addition to the types of participation expressly contemplated by this Rule, a judge’s permissible extrajudicial activities often involve teaching or writing on law-related subjects and, on occasion, non-law-related subjects. See Rule 1.3 for special considerations that arise when a judge writes or contributes to publications of a for-profit entity. Similar considerations also may arise if a judge teaches for a for-profit entity. 

[6] In addition to appointing lawyers to serve as counsel for indigent parties in individual cases as authorized by law, a judge may promote broader access to justice by encouraging lawyers to provide pro bono publico or reduced fee legal services, if in doing so the judge does not employ coercion or abuse the prestige of judicial office. Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work. 

[7] Paragraph (C) is intended to allow a judge to participate in a child’s normal, daily activities. Thus, for example, a judge may accompany the judge's child while the child sells Girl Scout cookies or collects UNICEF donations, or may work at a refreshment stand at a school-sponsored sports event intended to raise money to finance a class trip. On the other hand, this provision does not permit a judge to participate in fundraising activities for the primary or exclusive benefit of the judge’s own child, such as raising funds so that the judge's child may participate in a school-sponsored trip. The word “assist” is intended to convey that a judge should not engage in direct solicitations on behalf of the child other than from members of the judge’s family. A judge may not, for example, sell Girl Scout cookies in the workplace

Rule 3.8 Appointments to fiduciary positions

(A) A judge shall not accept appointment to serve in a fiduciary position, except for the estate, trust, or person of a member of the judge’s family, and then only if such service will not interfere with the proper performance of judicial duties. 

(B) A judge shall not serve in a fiduciary position if the judge as fiduciary will likely be engaged in proceedings that would ordinarily come before the judge, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves, or one under its appellate jurisdiction. 

(C) A judge acting in a fiduciary capacity shall be subject to the same restrictions on engaging in financial activities that apply to a judge personally. 

(D) If a person who is serving in a fiduciary position becomes a judge, he or she must comply with this Rule as soon as reasonably possible and in any event within one year. 

Comment

[1] A judge should recognize that other restrictions imposed by this Code may conflict with a judge’s obligations as a fiduciary. In such circumstances, a judge should resign as fiduciary as soon as reasonably possible and in any event within one year. For example, serving as a fiduciary might require frequent disqualification of a judge under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis

Rule 3.9 Service as arbitrator or mediator

A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official duties unless expressly authorized by law. 

Comment 

[1] This Rule does not prohibit a judge from participating in mediation, conciliation, or settlement conferences performed as part of judicial duties. Rendering dispute resolution services apart from those duties, whether or not for economic gain, is prohibited unless it is expressly authorized by law

Rule 3.10 Practice of law

A judge shall not practice law, except that: 

(A) A judge may act pro se and may, without compensation, give legal advice to and draft or review documents for a member of the judge’s family, but is prohibited from serving as the family member’s lawyer in any forum, and 

(B) A judge may serve as a judge advocate general in the context of a judge’s service in the United States Armed Forces, the reserve components of the United States Armed Forces, or the National Guard. 

Comment 

[1] A judge may act pro se in all legal matters, including matters involving litigation and matters involving appearances before or other dealings with governmental bodies. 

[2] A judge must not use the prestige of office to advance the judge’s personal or family interests. See Rule 1.3

[3] While performing legal services in the context of a judge's military service, the judge must confine that conduct to authorized activities

Rule 3.11 Financial, business, or remunerative activities

(A) 

A judge may hold and manage investments of the judge and members of the judge’s family. 

(B) 

A judge shall not serve as an officer, director, manager, general partner, advisor, or employee of any business entity except that a judge may manage or participate in a business entity primarily engaged in investment of the financial resources of the judge or members of the judge’s family. 

(C) 

A judge shall not engage in financial activities permitted under Paragraphs (A) and (B) if they will: 

(1) interfere with the proper performance of judicial duties; 

(2) lead to frequent disqualification of the judge; 

(3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the court on which the judge serves; or 

(4) result in violation of other provisions of this Code. 

Comment

[1] As soon as practicable without serious financial detriment, the judge must divest himself or herself of investments and other financial interests that might require frequent disqualification or otherwise violate this Rule. 

[2] Under this Rule, a judge must consider the difference between the permitted management of an investment and the prohibited management of a business. For example, a judge who owns residential or commercial properties as investments may establish policy and participate in decisions regarding the purchase, sale, and use of land, but must leave the actual day-to-day management to others

Rule 3.12 Compensation for extrajudicial activities

A judge may accept reasonable compensation for extrajudicial activities permitted by this Code or other law unless such acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. 

Comment

[1] A judge is permitted to accept wages, salaries, royalties, or other compensation for teaching, writing, and other extrajudicial activities, provided the compensation is commensurate with the task performed and the judge’s qualifications to perform that task. A judge must ensure, however, that no conflicts are created by the arrangement. A judge must not appear to trade on the judicial position for personal advantage. See Rule 1.3. In addition, the source, amount, and timing of the payment, alone or in combination, must not raise any question of undue influence or undermine the judge's ability to act independently, impartially, and with integrity. The judge should also be mindful that judicial duties must take precedence over other activities. See Rule 2.1

[2] A teaching activity may include lecturing in educational programs sponsored by non-profit organizations and associations including but not limited to educational institutions, bar associations, professional associations, providers of continuing legal education, and governmental entities concerned with the law, the legal system, or the administration of justice. A judge is not permitted to accept an honorarium or fee for a speaking engagement other than a teaching activity, but may accept reimbursement of expenses. See Rule 3.14

[3] Compensation derived from extrajudicial activities may be subject to public reporting. See Rule 3.15

Rule 3.13 Acceptance and reporting of gifts, loans, bequests, benefits, or other things of value

(A) 

A judge shall not accept any gifts, loans, bequests, benefits, or other things of value (“gifts” or “benefits”) if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. 

(B) 

Unless otherwise prohibited by Paragraph (A), a judge may accept the following gifts or benefits provided that they are not given for or because of the judge's official position or action, without publicly reporting them: 

(1) gifts or benefits not of substantial value as that term is defined by the State Ethics Commission, see 930 C.M.R. 5.05

(2) gifts or benefits from close personal friends or relatives whose appearance or interest in a matter pending or impending before the judge would in any event require disqualification of the judge under Rule 2.11

(3) ordinary social hospitality; 

(4) gifts or benefits given in connection with a judge’s participation in the organizations described in Rule 3.7, so long as the same gifts, benefits, and opportunities are made available on the same terms to similarly situated persons who are not judges; 

(5) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges; 

(6) rewards and prizes given to competitors or participants in random drawings, contests, or other events that are open to persons who are not judges; 

(7) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated persons who are not judges, based upon the same terms and criteria; and 

(8) gifts or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge’s household, but that incidentally benefit the judge. 

(C) Unless otherwise prohibited by Paragraph (A), a judge may accept any other gift or benefit provided that it is not given for or because of the judge’s official position or action, but the judge must publicly report the gift or benefit in the manner required under Rule 3.15

(D) Unless otherwise prohibited by Paragraph (A), a judge may accept the following gifts or benefits given for or because of the judge’s official position or action, without publicly reporting them: 

(1) a gift, award, or other benefit incident to public recognition of the judge, provided the gift is not of substantial value as that term is defined by the State Ethics Commission, see  930 C.M.R. 5.05

(2) invitations to the judge to attend without charge a luncheon, dinner, reception, award ceremony, or similar event, held in Massachusetts, of a bar association or other non-profit organization concerned with the law, the legal system, or the administration of justice; 

(3) discounted or free membership to a bar association or other non-profit organization concerned with the law, the legal system, or the administration of justice; and 

(4) books, magazines, journals, and other resource materials supplied by publishers on a complimentary basis for official use. 

(E) Unless otherwise prohibited by Paragraph (A), a judge may accept the following gifts or benefits given for or because of the judge’s official position or action, but the judge must publicly report the gift or benefit in the manner required under Rule 3.15

(1) a gift, award, or other benefit incident to public recognition of the judge, if the gift is of substantial value as that term is defined by the State Ethics Commission, see  930 C.M.R. 5.05; and 

(2) a complimentary invitation for a spouse or domestic partner, or other guests, to attend an event of a bar association or other non-profit organization concerned with the law, the legal system, or the administration of justice where a judge is being honored. 

Comment 

[1] This Rule addresses whether and in what circumstances a judge may accept gifts or other items of value (“gifts” or “benefits”) without paying fair market value. Judges, like other public employees, are governed by the conflict of interest laws set forth in G. L. c. 268A and c. 268B and by associated regulatory exemptions that establish exclusions for certain situations that do not present a genuine risk of a conflict of interest or the appearance of a conflict of interest. This Code is largely consistent with c. 268A and regulations adopted by the State Ethics Commission. However, Rule 3.13 differs from those provisions in two important respects. First, because judges are always obligated to uphold and promote the independence, integrity, and impartiality of the judiciary, a judge may not accept any gift or benefit, even if available to other public employees and unrelated to the judge’s official position or action, if acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, and impartiality. Second, this Rule carves out a few limited exceptions where a judge may accept a gift or benefit given for or because of the judge's official position or action even if such gift or benefit would ordinarily be prohibited by G. L. c. 268A, §§ 3 and 23(b)(2) . See Rule 1.1. These exceptions are intended to allow judges to participate more fully in activities and organizations dedicated to the law, the legal system, and the administration of justice. 

[2] Paragraph (A) recognizes that whenever a judge accepts a gift without paying fair market value, even one not given for or because of a judge’s official position or action, there is a risk that the public may regard the gift as an attempt to influence the judge in the performance of judicial duties. Paragraph (A) therefore requires a judge to reject any gift if acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. Paragraphs (B) and (C) address instances when a gift is not given for or because of a judge’s official position or action. Paragraph (B) identifies limited circumstances in which a gift may be accepted and not disclosed, while Paragraph (C) allows for additional instances when a judge may accept but must publicly report a gift. Paragraphs (D) and (E) identify limited instances where, after making a threshold determination that acceptance of a gift or benefit would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality, a judge may accept a gift or benefit given for or because of the judge’s official position or action. Paragraph (D) identifies instances when the judge may accept such a gift or benefit without public disclosure while Paragraph (E) identifies instances when public reporting is required to foster public confidence in the judiciary. 

[3] A judge’s acceptance of a gift from a lawyer or law firm who is appearing before the judge is an example of a gift prohibited by Paragraph (A), as such a gift would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. A judge’s acceptance of a gift or other thing of value from a party when the party's interests are before the judge raises the same concerns. The same concerns also are raised when the lawyer or law firm has appeared before, or the party’s interests have come before, the judge in the reasonably recent past or are likely to come before the judge in the future. 

[4] Paragraph (B)(1) provides that a judge may accept and not publicly report a gift or benefit not of substantial value if it is not prohibited by Paragraph (A) and is not given because of a judge’s official position or action. 

[5] Gift-giving between close personal friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause a reasonable person to believe that the judge’s independence, integrity, or impartiality has been compromised even when the close personal friend or relative is a lawyer. In addition, because the appearance of close personal friends or relatives in a case would require the judge’s disqualification under Rule 2.11, there would be no opportunity for a gift or other thing of value to influence the judge’s decision making; nor would a reasonable person believe that the gift was given due to the judge’s official position. Paragraph (B)(2) places no restrictions upon the ability of a judge to accept gifts or other things of value from friends or relatives under these circumstances and does not require public reporting. 

[6] “Ordinary social hospitality” consists of those social events and routine amenities, gifts, and courtesies which are normally attended by or exchanged between friends, colleagues, and acquaintances, and which would not create an appearance of impropriety to a reasonable, objective observer. The test is objective, not subjective. Paragraph (B)(3) permits that type of social event or gift which is so common among people in the judge’s community that no reasonable person would believe that: (i) the host/giver was intending to or would obtain any advantage; or (ii) the guest/recipient would believe that the host/giver intended to obtain any advantage. 

[7] Paragraph (B)(4) recognizes that a judge’s participation in organizations and activities, such as those permitted under Rule 3.7, may lead to the judge’s being offered a gift or benefit. A judge may accept such a gift or benefit so long as the same gift or benefit is made available on the same terms to similarly situated persons who are not judges. For example, a local professional performer may offer the members of a neighborhood chorus complimentary tickets of substantial value to attend a concert. A judge who sings in the chorus may accept a ticket because the gift is offered on the same terms to all of the members. 

[8] Businesses and financial institutions frequently make available special pricing, discounts, and other benefits, either in connection with a temporary promotion or for preferred customers, based upon longevity of the relationship, volume of business transacted, and other factors. Paragraphs (B)(5) - (B)(7) provide that a judge may freely accept such benefits if they are available to the general public, or if the judge qualifies for the special price or discount according to the same criteria as are applied to persons who are not judges. As an example, loans provided at generally prevailing interest rates are not gifts, but a judge could not accept a loan from a financial institution at a below-market interest rate unless the same rate was being made available to the general public for a certain period of time or to borrowers with specified qualifications that the judge also possesses. 

[9] This Rule applies only to acceptance of gifts or benefits by a judge. Nonetheless, if a gift or benefit is given to the judge’s spouse, domestic partner, or member of the judge’s family residing in the judge’s household, it may be viewed as an attempt to evade this Rule and influence the judge indirectly. Where the gift or benefit is being made primarily to such other persons, and the judge is merely an incidental beneficiary, this concern is reduced and Paragraph (B)(8) does not require disclosure. A judge should remind family and household members of the restrictions imposed upon judges, and urge them to take these restrictions into account when making decisions about accepting such gifts or benefits. 

[10] Paragraph (C) allows a judge to accept any other gift of substantial value that is not given because of the judge’s official position or action and is not prohibited by Paragraph (A), provided that the judge publicly reports the gift. 

[11] In general, the receipt by a judge of free or discounted legal services carries a significant risk that such a gift would appear to a reasonable person to be given because of the judge’s official position or action and to undermine the judge’s independence, integrity, or impartiality. There are, however, certain circumstances when that risk is sufficiently abated that a judge may accept and not disclose a gift of free or discounted legal fees pursuant to Paragraphs (B)(2) or (B)(5) or may accept but must disclose the gift pursuant to Paragraph (C). 

Paragraph (B)(2) permits a judge to accept and not disclose free or discounted legal services from a relative or close personal friend whose appearance in a matter would require the judge’s disqualification if the lawyer is a sole practitioner or at a firm where all the lawyers are relatives or close personal friends of the judge (e.g., a firm composed of two siblings who are both close personal friends of the judge). Because a gift of legal services is always a gift from both the lawyer providing the services and that lawyer’s firm, Paragraph (B)(2) does not apply if the lawyer providing the services is a sole practitioner but not a relative or close personal friend of the judge, or if that lawyer works at a firm where not all of the lawyers are relatives or close personal friends of the judge. 

Paragraph (B)(5) permits a judge to accept and not disclose free or discounted legal services when a lawyer or law firm has offered special pricing or a discount as part of a commercial opportunity or marketing strategy to a group of similarly situated persons who are not judges. For example, a law firm may have different rate structures for individual and corporate clients. Another example is a law firm that offers a reduced rate for estate planning services to all persons over 65. Paragraph (B)(5) does not apply if the special pricing is offered as a professional courtesy only to judges. 

Paragraph (C) provides for instances when a judge may accept but must disclose free or discounted legal services. A reasonable person would not believe the gift or benefit undermines the judge’s independence, integrity, or impartiality when the same discount is extended to non-judges in comparable circumstances, and the lawyer, the lawyer's firm, and their interests are not before the judge, have not come before the judge in the reasonably recent past, and are not likely to come before the judge in the reasonably near future. Examples of comparable circumstances include the following: a law firm's policy is to extend professional courtesies to all former partners, and the judge is a former partner; a law firm's policy is to extend professional courtesies to the relatives of partners, and the judge's sibling is a partner at the firm; a lawyer's policy is to offer discounted legal services both to lawyers facing proceedings before the Board of Bar Overseers and to judges facing proceedings before the Commission on Judicial Conduct. Nevertheless, disclosure is necessary to maintain public confidence in the judiciary by making readily identifiable any potential for compromise to the judge's independence, integrity, or impartiality. 

[11A] Where a judge retains legal representation due to a matter before the Commission on Judicial Conduct, a judge may be entitled to the payment of reasonable attorneys' fees by the Commonwealth with the approval of the Supreme Judicial Court as provided by G. L. c. 211C, § 7(15) . See SJC Standing Order Regarding Procedure for Judges Seeking a Determination Concerning Attorneys’ Fees for Representation in a Matter Before the Commission on Judicial Conduct

[11B] A judge may accept free or discounted legal representation due to a matter before the Commission on Judicial Conduct upon a determination by the Supreme Judicial Court that such representation would serve the public interest. See SJC Standing Order Regarding Procedure for Judges Seeking a Determination Concerning Attorneys’ Fees for Representation in a Matter Before the Commission on Judicial Conduct.  

[12] Paragraphs (D) and (E) identify limited instances when, after making a threshold determination that, in the particular circumstances, acceptance of a gift or benefit would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality, a judge may accept a gift or benefit given for or because of the judge’s official position or action. Paragraph (D) identifies instances where the risk of the appearance of a conflict of interest is so slight that public reporting is not required, while Paragraph (E) identifies instances in which public reporting is required. 

[13] Paragraph (D)(1) permits a judge to accept gifts not of substantial value that are incident to public recognition of the judge. Examples might include plaques, trophies, and certificates. Gifts that are inscribed or personalized may have little market value. 

[14] Paragraphs (D)(2) and (D)(3) are intended to encourage judicial participation in the activities of bar associations and other non-profit organizations concerned with the law, the legal system, and the administration of justice. Judicial participation in such activities promotes professionalism within the legal profession and public confidence in the administration of justice. See, e.g., Rules 1.23.1, and 3.7

Paragraph (D)(2) encourages judicial participation in bar association activities by permitting judges to attend without charge luncheons, dinners, receptions, award ceremonies, or similar events held in Massachusetts. Unlike the invitations addressed in Rule 3.14, invitations under Paragraph (D)(2) may be accepted without obtaining a determination by the Chief Justice of the court on which the judge sits that acceptance will serve a legitimate public purpose, and that such public purpose outweighs any non-work related benefit to the judge or to the organization providing the waiver of expenses. That is because the judge’s attendance at these types of events is presumed to serve such a public purpose. 

[15] Paragraph (D)(4) provides that a judge may accept for official use books and other electronic and non-electronic resource materials supplied by publishers on a complimentary basis. 

[16] Paragraph (E)(1) permits a judge to accept a gift of substantial value incident to public recognition of the judge, but requires the judge to publicly report the gift. 

[17] Paragraph (E)(2) recognizes that there are instances when it may be appropriate for a judge to accept complimentary invitations for family members or guests so long as the judge publicly reports the gift. For example, a judge receiving an award from a bar association may accept an offer of complimentary tickets to be used by the judge's spouse and children

Rule 3.14 Reimbursement of expenses and waivers of fees or charges

(A) Unless otherwise prohibited by Rules 3.1 and 3.13(A) or other law, a judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition, and similar items, from sources other than the judge’s employing entity, if the expenses or charges are associated with the judge’s participation in extrajudicial activities permitted by this Code. 

(B) Reimbursement of expenses for necessary travel, food, lodging, or other incidental expenses shall be limited to the actual costs reasonably incurred by the judge. 

(C) If the invitation to the judge is connected to the judge's official position or official action and is not covered by Rule 3.13(D)(2), a judge is required to notify the Chief Justice of the court on which the judge sits and obtain a determination that acceptance of the reimbursement or waiver serves a legitimate public purpose and such purpose outweighs any non-work related benefit to the judge or to the person or organization providing the payment or waiver of expenses. 

Comment

[1] This Rule applies specifically to a judge’s attendance at tuition-waived and expense-paid seminars and similar events that may be sponsored by law-related organizations or by educational, civic, religious, fraternal, and charitable organizations, and is intended to apply to events not described in Rule 3.13(D)(2)

[2] Not infrequently, sponsoring organizations invite certain judges to attend seminars or other events on a fee-waived or partial-fee-waived basis, and sometimes include reimbursement for necessary travel, food, lodging, or other incidental expenses. A judge’s decision whether to accept reimbursement of expenses or a waiver or partial waiver of fees or charges in connection with these or other extrajudicial activities must be based upon an assessment of all the circumstances. The judge must undertake a reasonable inquiry to obtain the information necessary to make an informed judgment about whether acceptance would be consistent with the requirements of this Code.

[3] A judge must assure himself or herself that acceptance of reimbursement or fee waivers would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality. This decision involves consideration of the totality of circumstances, including but not limited to the nature of the sponsor, the source of the funding, whether the sponsor or source of the funding frequently takes positions on issues before or likely to come before the court where the judge sits, and the content of the program or event, including whether differing viewpoints are presented. Where the invitation is associated with any of the judge’s non-law-related activities, including educational, religious, fraternal, or civic activities, the judge may accept reimbursement or fee waiver only if the same invitation is offered to similarly- situated non-judges who are engaged in similar ways as the judge. 

[4] Paragraph (C) is intended to ensure that a judge obtains a determination from the Chief Justice of the court on which the judge sits that a legitimate public purpose is served by the judge’s acceptance of the reimbursement or waiver when the invitation is connected to the judge’s official position or official action. In contrast, no such determination is required in the circumstances covered by Rule 3.13(D)(2) because a legitimate public purpose is presumed

Rule 3.15 Reporting requirements

(A) 

A judge shall annually complete the Public Report of Extra-Judicial Income in the form promulgated by the Supreme Judicial Court and the Statement of Financial Interests in the form promulgated by the Massachusetts State Ethics Commission. 

(B) 

The Public Report of Extra-Judicial Income shall require the public reporting of the following items if they are of substantial value: 

(1) compensation received for extrajudicial activities permitted under Rule 3.12; and 

(2) gifts and other things of value where disclosure is required by Rule 3.13.

Downloads for Canon 3: A judge shall conduct the judge's personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office

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