September 3, 2020
A judge, judge’s family member, or staff member may accept gifts that are considered “ordinary social hospitality” but should not accept any other gifts from persons who may appear before the judge.
References: MCJC 1, 2A and C; 3, 3(B)(2), 4E (4) and (5); JI-25, JI-75, JI-80, JI-106, CI-533
A judge, a judge’s family members, and judicial staff are frequently presented with offers of or actual gifts from lawyers who are friends with and may also appear before the judge. This opinion provides guidance regarding the acceptance and the denial of gifts in the following categories:
a. Personal and professional gifts to the judge from lawyers who are friends with and may also appear before the judge, such as personalized clothing, specially engraved pens and/or pencils, souvenirs, alma mater and/or fraternity/sorority paraphernalia, pictures/artwork, and jewelry.
b. Social invitations to lunch, dinner, sporting and entertainment events from lawyers who are friends with and may also appear before the judge.
c. Gifts to the judge’s family members for personal occasions, such as birthdays, graduations, engagements, marriages, anniversaries, and religious ceremonies/celebrations including bar and bat mitzvahs.
d. Gifts of appreciation to the judge and/or the judge’s staff, such as flowers, plants, and food including donuts, bagels, candy, cookies, sandwiches, and fruit baskets.
As an initial premise, judges have a duty to uphold the integrity and independence of the judiciary. Canon 1 provides that “An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should personally observe, high standards of conduct so that integrity and independence of the judiciary may be preserved.” A court’s acceptance of gifts of appreciation from lawyers who appear before them may cause other professionals and the public to question those fundamental principles.
Canon 3 requires judges to perform their judicial duties impartially and to require court personnel to perform their administrative duties consistent with this obligation. Judicial duties “take precedence over all other activities.” Canon 3. A judge’s administrative responsibility to ensure that judicial staff perform their duties consistent with the judge’s impartiality obligation is expressly stated in Canon 3(B)(2): “A judge should direct staff and court officials subject to the judge’s control to observe high standards of fidelity, diligence, and courtesy to litigants, jurors, witnesses, lawyers, and others with whom they deal in their official capacity.”
Canon 4 pertains to extrajudicial activities and requires the judge to uphold the duty of impartiality in other professional and personal activities, and to ensure that the judge’s family members conduct themselves consistent with the judge’s obligation. Canon 4E (4) and (5) address the issue of gifts as follows:
- Neither a judge nor a family member residing in the judge's household should accept a gift, bequest, favor, or loan from anyone except as follows:
a. A judge may accept a gift or gifts not to exceed a total value of $375, incident to a public testimonial; books supplied by publishers on a complimentary basis for official use; or an invitation to the judge and spouse to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.
b. A judge or a family member residing in the judge's household may accept ordinary social hospitality; a gift, bequest, favor, or loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants.
c. A judge or a family member residing in the judge's 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 the judge, and, if the aggregate value of gifts received by a judge or family member residing in the judge’s household from any source exceeds $375, the judge reports it in the same manner as compensation is reported in Canon 6C. For purposes of reporting gifts under this subsection, any gift with a fair market value of $150 or less need not be aggregated to determine if the $375 reporting threshold has been met.
d. For the purposes of this section, “family member residing in the judge's household” means any relative of a judge by blood or marriage, or a person treated by a judge as a family member, who resides in the judge's household.
With respect to Canon 4E(4)(b), the phrase “ordinary social hospitality” should be viewed “through an objective lens…how the reasonable observer would view the gift.” In re Haley, 476 Mich 180, 192, 720 NW2d 246 (2006) 1. The language itself makes clear that the exchange must be in a social, rather than professional, context. Additionally, a history of reciprocal hospitality between the judge and the person offering the gift supports an inference that the gift is ordinary social hospitality. A judge should carefully weigh acceptance of such hospitality to avoid an appearance of impropriety or bias or any appearance that the judge is misusing the prestige of judicial office. A judge should also err on the side of caution when deciding whether to accept the hospitality.
The committee believes that examples of gifts that may constitute ordinary social hospitality include:
1. A bottle of wine or a dessert or food item that is presented by a houseguest.
2. The purchase of a meal by a friend or colleague with the reasonable expectation that a future purchase would be reciprocated by the receiving judge.
3. Mutual gift exchanges, such as exchanging of holiday/birthday gifts of comparable value.
4. Produce from a home garden when similar hospitality is reciprocated.
Examples of gifts that would not be typically considered “ordinary social hospitality” include:
1. Any gifts from attorneys, litigants, or persons whose interests have or are likely to come before the judge. Gifts from these sources, regardless of the value, are strictly prohibited.
2. Tickets to concerts, shows, sporting events, or fundraising events.
3. Gifts that are of significant value, such as use of a vacation home or time-share and expensive gifts from a lobbyist or vendor.
4. Gifts that are presented where there is no reasonable expectation of reciprocity. For example, if a judge and her husband were taken out to dinner by a salesperson who was selling a product that may be purchased or utilized by the court, the judge could not ethically allow the salesperson to pick up the dinner tab as there is no reasonable expectation that the expenditure would be reciprocated by the judge. Furthermore, this could be viewed as the judge’s misuse of the prestige of office.
Based on the provisions of Canon 4E, a judge, judge’s family member, or staff should not accept gifts from persons whose interests are before the judge or are likely to come before the judge.
Canon 2, which addresses the appearance of impropriety, must be considered with regard to acceptance of gifts by a judge, a judge’s family member, or the judge’s staff. Cited in pertinent part below, Canon 2 states as follows:
A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.
C. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment.
Persons involved in a proceeding before a judge may be concerned that a judge’s decision regarding their matter may be influenced by gifts, if the acceptance of gifts by a judge, a judge’s judicial staff, or family members is permitted.
Each year prior to the beginning of the year-end holiday season, the State Court Administrative Office issues a memorandum reminding judges and court personnel of the importance of not accepting gifts to observe the high standards provided by Canon 4(E)(4) and Canon 3(B)(2). The most recent notice at the time this opinion was drafted reads as follows:
At this time of the year, it is difficult to deal with those who, with good intentions, try to give gifts or gratuities to judges and court staff. The Code of Judicial Conduct, Canon 4(E)(4), prohibits judges and their family members from receiving gifts, except in certain limited circumstances. Prudence dictates that judges should require court staff under their direction to observe high standards to avoid any appearance that the official actions, decisions, or judgments of any court employee could be influenced by gifts. See Code of Judicial Conduct, Canon 3(B)(2). While the spirit motivating potential gifts to judges and court staff is appreciated, gifts are not appropriate.2
This notice reinforces the importance of ongoing judicial oversight to avoid the unintended consequence of well-intended lawyers or parties giving gifts to judges and judicial staff.
The committee has generally considered this issue in a few contexts. In JI-25, a judge was not disqualified from presiding over a case involving the donor-lender-benefactor that was displaying artwork or other products, without charge, in the courthouse or the judge’s courtroom. The agreement between the donor and governmental entity controlling the courthouse did not involve the judge financially or personally regarding the artwork on display.
In JI-80, the committee found that a judge may accept an honorarium for an out-of-state speaking engagement on a non-legal topic during a conference focusing on key decision-makers. Neither the sponsoring company nor the conference participants had come or were likely to come before the judge or judge’s court. The committee in JI-80 opined it was ethical for the judge to accept an honorarium for participating in the program, subject to the reporting requirements of Canon 6C, if other program participants would receive a comparable gratuitous payment.
In JI-75, a judge was competing for scholarship funds to attend a professional seminar designed to develop more women leaders and to expand peer networking nationally. The scholarship selection criteria included the assessment of the applicant’s ability to make substantive contributions to the seminars. The committee opined that even though the judge was competing for the scholarship on equal grounds, the judge should not accept the scholarship funds if the parties involved in giving the scholarship were likely to appear in the judge’s courtroom.
In JI-106, the committee determined that it was ethical for a judge to accept pro bono legal services from the judge’s sibling while pursuing a public policy issue that was the subject of a case before another judge. The committee noted that Canon 4E(b) permits a judge to accept a gift or favor from a relative, without defining types of permissible gifts. Therefore, based on the familial relationship between the judge and the lawyer offering the services, the acceptance of the pro bono legal services was not unethical.
In summary, a judge, judge’s family member, or staff member may accept gifts that are considered “ordinary social hospitality,” but should not accept any other gifts from persons who may appear before the judge.
1. The Michigan Supreme Court in Haley was willing to consider the test articulated by the Illinois Supreme Court in In Re Corboy, but found it was not necessary because the exchange of football tickets occurred while the judge was on the bench in the courtroom making it obvious that it was not a social context. The Corboy test considers (1) the monetary value of the gift, (2) the relationship, if any, between the judge and the donor, (3) social practices and customs associated with gifts, and (4) the particular circumstances surrounding the gift. In re Haley, 476 Mich 180, 192-193, 720 NW2d 246 (2006).
2. Memorandum issued by Milton L. Mack, Jr., State Court Administrator, on November 18, 2019.