Supreme Judicial Court Rules  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.

[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 1.2, 3.1, 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.