Sunday, September 20, 2009
A recent opinion from Florida's Judicial Ethics Advisory Committee:
The inquiring judge asks for an opinion interpreting Canons 5D(5)(e) and 5D(5)(h), relating to tickets to sporting events. An apparent hockey fan, the inquiring judge is a season ticket holder and has a “close personal [lawyer] friend” with access to the friend’s law firm’s suite/skybox tickets which have a higher value than the judge’s tickets. On occasion the judge and the lawyer/friend exchange tickets. At other times, once the judge is already admitted into the arena, the lawyer/friend provides the judge access to the firm’s suite/skybox during the game. The inquiring judge adds that no one in the lawyer/friend’s firm appears before the judge.
Canon 5D regulates a judge’s financial activities. Specifically, Canons 5D(5)(e) and (h) provide, in pertinent part,
(5) A judge shall not accept… a gift, bequest, favor or loan from anyone except for:
(e) a gift, bequest, favor or loan from a relative or close personal friend whose appearance or interest in a case would in any event require disqualification under Canon 3E;
(h) any other gift, bequest, favor or loan, only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge; and, if its value, or the aggregate value in a calendar year of such gifts, bequests, favors, or loans from a single source, exceeds $100.00, the judge reports it in the same manner as the judge reports gifts under Canon 6B(2).
Succinctly stated, Canon 5D(5)(e) permits a judge to accept gifts from close friends whose appearance in a case would otherwise require disqualification, and Canon 5D(5)(h) permits a judge to accept gifts from donors who have not and are unlikely to come before the judge. In the latter, if the aggregate value of the gift(s) in a calendar year exceeds $100.00, the judge must report the gift as required by Canon 6B(2).
Although the inquiring judge narrowly asks whether and how to report the tickets as gifts, the Committee broadens the inquiry to include a discussion of whether receipt of the tickets is permissible.
As explained above, judges may accept gifts from close personal friends whose appearance in a case would otherwise require disqualification under Canon 3E. The inquiring judge refers to the attorney as a “close personal friend”. Therefore, this Committee presumes that, absent the ticket exchange, the friendship ties with the attorney would be the only factor requiring disqualification of the inquiring judge. See e.g., Canon 3E(1)(b) (disqualification required where a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter).
Obviously, this Committee is in no position to assess the nature of a judge’s friendships; only an individual judge can determine whether a friendship with an attorney or party is such that one may have reasonable concern over the judge’s impartiality. In this regard, in JEAC Op. 04-35, this Committee opined that a judge must disclose a friendship with an attorney if, in the judge's estimation, the nature of the friendship is sufficient to warrant reasonable concern over the judge's impartiality. It is important to note that not all friendships, even close personal ones, require disqualification.
Rather, in many instances, disclosure is appropriate. See JEAC Op. 93-7 (if a judge maintains strong social ties with an attorney disclosure would be appropriate or necessary); JEAC Op. 89-3 (social relationship with an attorney and occasional hunting partner who permitted access to a cabin must be disclosed).
It remains this Committee’s opinion that the inquiring judge must determine, absent the ticket exchange, whether disclosure or disqualification is the most appropriate remedy if this attorney, or anyone from the law firm, would appear before the judge. This Committee also adds that, as in JEAC 04-35 and JEAC Op. 89-3, the acceptance of gifts may exacerbate the need for disqualification, when disclosure alone may have been appropriate.
As such, in adherence to Canon 2B, which provides that “a judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment” and that a judge shall not “convey or permit others to convey the impression that they are in a special position to influence the judge” if the inquiring judge would merely disclose the relationship absent the ticket exchange, it is incumbent on the inquiring judge to refrain from accepting gifts from this lawyer/friend. However, after searching his or her conscience, if the inquiring judge determines that disqualification from any matter involving the subject lawyer/friend would be required absent the ticket exchange, then the inquiring judge may accept gifts subject to the disqualification requirement in any case involving anyone from the firm.
Regarding the gift reporting requirement, JEAC Op. 02-20, summarizes the application of Canon 5D(5) as follows, “[G]ifts described in (a) through (g) of 5(D)(5) need not be reported. The Judge must only report gifts that fall under the provisions of Canon 5D(5)(h), if the aggregate value exceeds $100.00, rather than every gift received from the spouse, children, siblings, and close personal friends.” See also JEAC Op. 03-10. Thus, if the gifts are accepted under Canon 5D(5)(e), the inquiring judge is not required to report the gifts pursuant to Canon 6B(2). Therefore, the inquiring judge must first resolve the disclosure versus disqualification issue regarding appearances of the “close personal friend”. Depending on the resolution of that issue, the judge may be required to undertake an analysis of the appropriate value of the gifts, as explained below.
Canon 5D(5)(h) and Canon 6B(2) require the judge to report the aggregate value of any gifts received exceeding $100.00. The inquiring judges asks, in attempting to comply with the gift reporting requirement, “may the aggregate value of the tickets exchanged be utilized to determine if there is a net difference in excess of $100” and “if the aggregate value of the tickets exchanged nets out to be less than $100 are the tickets exempt from disclosure pursuant to Canon 5D(5)(h)?” In short, the inquiring judge asks, whether an offset may be applied for the value of the tickets given to the attorney in exchange for the value of the tickets received by the judge.
This issue is easily resolved by considering the practical application of the inquiry. Application of an offset in determining whether a judge received a gift valued at $100.00, would allow a judge to devalue the amount of any gift received merely by giving a gift to the donor in return. To permit a judge to offset the value of any gift received by giving a gift in return would subvert the clear spirit of the Code. Accordingly, if the gift is one accepted under Canon 5D(5)(h), the inquiring judge must report the total value of the tickets received in complying with the reporting requirements of Canon 6B, without consideration of the value of the tickets exchanged. In calculating the amount, the inquiring judge must also consider the value of the suite/skybox. See JEAC Op. 89-03 (contributions to son’s quail-raising hobby and use of North Carolina cabin are reportable gifts).
Finally, this Committee recommends that the inquiring judge consider In re: Luzzo, 756 So. 2d 76 (Fla. 2000) involving a judge’s acceptance of Florida Marlins baseball game tickets valued at $16.00 to $18.00, apiece from a law firm whose lawyers appeared before him in at least two cases. Here, the inquiring judge states that “no one in [the friend’s] firm appears before me.” While such may be the case currently, as judges are often transferred to varying divisions of the Court, there is no definitive way to determine whether a case is “likely to come before the judge.” Canon 5D(5)(h). As a result, this Committee cautions the judge to regulate his/her extrajudicial activities to minimize the risk of conflict. See, generally, Canon 5A.