Wednesday, August 27, 2014
CJEO Warns Judges on Accepting Gifts of ‘Nominal’ Value
By a MetNews Staff Writer
Acceptance of small gifts by judges as a matter of “ordinary social hospitality” may violate ethics rules, depending on the situation, the Committee on Judicial Ethics Opinions warned yesterday.
“The gracious and spontaneous offering of the small-value items the committee has been asked to examine might lead an unwary judge to accept them based on several faulty assumptions,” the committee said in a formal opinion.
“One is that the items are de minimis and therefore do not fall within the gift ban in the canons. Another incorrect assumption is that the ordinary social hospitality exception is a catchall covering any circumstance not otherwise specified in the gift exceptions. And finally, because the items are relatively insignificant in value, a judge might erroneously assume that any ethical violation incurred by acceptance would also be insignificant and easily cured by disclosing the gift or donating it to others.”
The opinion largely tracks a draft the committee released for public comment in June. Entitled “Accepting Gifts of Little or Nominal Value Under the Ordinary Social Hospitality Exception,” it warns that judges may not accept gifts of any size or amount from parties in cases before them.
A judicial officer may accept a gift of nominal value that “appears customary or reasonable, rather than excessive, in the community in which it is offered,” the committee said. “A gift that would fall within the exception would be one that is ordinarily exchanged among members of the community. A gift card offered in thanks to volunteers, for example, may be an ordinary and reasonable practice in some communities, but not in others.
The opinion counsels judges to be wary of gifts that may be “low in extrinsic dollar value but high in intrinsic social value,” citing as examples the delivery of pizza by a law firm to courtroom staff following a long trial, or a small-value gift coupon or card offered to a judge who has provided volunteer services.
Gifts to staff members are covered by the ethics rules if they related to court business, and a judge has a duty to supervise the staff in this regard, the committee noted.
The committee concluded that even small gifts must be declined if the giver is likely to appear before the judge as a party, if they create a perception of favor or influence, or if a person aware of the gift would reasonably believe it was being given with the intent or expectation of obtaining an advantage.
“When offered a gift of nominal value, a judge should consider whether it is something that would traditionally be offered in circumstances involving socializing rather than business,” the committee explained. It cited as an example an offer to give a judge a ticket to a sporting event that the donor is not able to use, saying acceptance might be unethical in the absence of a prior social relationship between the judge and the donor.
In a footnote, the committee cited a similar example from retired Los Angeles Superior Court Judge David Rothman’s judicial ethics treatise. Rothman “similarly concludes that it would not be appropriate for the judge to accept the tickets, unless the relationship with the attorney is such that the judge would not sit on any case involving the attorney.”
The opinion has been designated for citation as CJEO Formal Opinion No. 2014-005.
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