NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.

JI-136

January 14, 2010

SYLLABUS

A judicial association may charge a vendor a fee for making space available for the vendor to display services and products at a judicial conference in an amount in excess of $100 if the fee charged is either in an amount reasonably calculated to represent the costs incurred by the association in making space available to the vendor or, if there is no additional cost to the association in making space available to vendors, the fee charged the vendor is not used to offset the cost of the conference itself, but rather is meticulously accounted for as a contribution to the association and used for other functions of the association such as ". . . the improvement of the law, the legal system, or the administration of justice" in accordance with Canon 4C. The treasurer of the organization, who is a judge, may receive the fee and handle those funds on behalf of the organization in order to deposit them in the organization's bank account as it would not constitute a solicitation, nor would it tend to adversely reflect on the judge's impartiality or judicial office for the reasons stated previously. Consistent with the prohibition against a judge's individual solicitation of funds, a judicial association cannot directly solicit a vendor to attend a conference for the purpose of raising funds for the organization.

References: MCJC 4C, 5C(1), 7C(2), and 8

TEXT

A judicial association has requested an opinion regarding members' involvement in the planning and implementation of their annual conference due to the fact that they have no executive director or lay staff, specifically asking if the judicial association can charge vendors a fee in excess of $100 to participate in their conferences; if the answer to that question is yes, who may accept the fees on behalf of the association in the absence of an executive director or any lay staff; and, if the treasurer for judicial association is a judge, may the treasurer handle those funds for deposit into the organization's bank account?

MCJC 8 clearly states that, "The canons of this Code concerning the conduct of individual judges and candidates also apply to judicial associations or other organizations consisting exclusively of judges."

MCJC 4C provides in pertinent part that, "A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not individually solicit funds."

MCJC 7C(2) states, "No judge or other person, party, committee, organization, firm, group, or entity may accept any contribution of money or of a tangible thing of value, directly or indirectly, to or for a judge's benefit for any purpose whatever, including but not limited to contribution for a campaign deficit, expenses associated with judicial office, testimonial, honorarium (other than for services subject to Canon 6 or otherwise."

MCJC 5C(1) provides, "A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves."

MCJC 8 makes it clear that any prohibited conduct for a judge is also prohibited by judicial associations.

In responding to the first question, if the fee charged the vendor is limited to a reasonable amount calculated to represent the costs incurred by the association in making space available to the vendor, it does not appear to be a contribution that would inure to the benefit1 of the association or any individual judge as proscribed by MCJC 7C(2). If there is no additional cost to the association in making space available to vendors, so long as the fee charged the vendors is not used to offset the cost of the conference itself, but rather is meticulously accounted for as a contribution to the association and used for other functions of the association such as ". . . the improvement of the law, the legal system, or the administration of justice," per MCJC 4C, then it would be permissible.

Answers to the second and third questions are also found in MCJC 4C, which says in pertinent part, "A judge may assist such an organization in raising funds and may participate in their management and investment, but should not individually solicit funds." In the factual scenario presented to the Judicial Ethics Committee, the vendor approached the association about displaying services and products at the conference. MCJC 4C prohibits the solicitation of funds. Solicit is defined as seeking to obtain or asking for currency.2 If the association merely offers the vendors the opportunity to display their services and products at the conference and the cost to the vendor is reasonably calculated to offset the cost of resources or space provided to the vendor or is accounted for as a contribution to the association, it would not appear to constitute solicitation of funds and, therefore, could be received by the treasurer of the association, who is a judge. On the other hand, consistent with the prohibition against a judge's individual solicitation of funds, a judicial association cannot directly solicit a vendor to attend a conference for the purpose of raising funds for the organization. The physical receipt of that money by a judge would not constitute solicitation. As MCJC 4C also states that the judge "may participate in [the funds'] management and investment," it would not violate the Code for that judge to handle and deposit the funds in the association's bank account on behalf of the association. Because the Michigan Code of Judicial Conduct does not prohibit the receipt of these monies by a judge, contemplating delegation of the task to court personnel is not necessary. Moreover, delegation of those duties to court personnel, whose conduct might in any event be imputed to the judge, would create a separate but additional problem of asking the employee to perform duties outside the scope of their employment.

Another question prompted by the inquiry is whether charging or collecting a fee from a vendor to display material at a conference would ". . . tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves," in derogation of MCJC 5C(1). Frequent is defined as happening often or habitually.3 Likely is defined as having a high probability of occurring or being true, being very probable, or reasonably being expected to occur.4 Certainly care should be taken to determine whether a particular vendor is likely to come before any court whose judge is a member of the association. However, common experience suggests that most vendors are not regularly or frequently involved in litigation. In fact, it is more highly unlikely that such vendors would come before the court or be involved in frequent transactions with the court.

Absent a circumstance where experience demonstrates that a particular vendor is likely to come before any court whose judge is a member of the association, charging and receiving a fee from a vendor to display its materials or services at a conference would not per se adversely reflect on a judge's impartiality or judicial office.

Moreover, because one of the purposes of the conference is educational, it can only add to judges' ability to perform their duties and fulfill their judicial office to be made aware of services and technologies that may be of assistance to them in the administration of justice. No judge attending the conference is obligated in any way to utilize the products or services of any vendor that may display its materials at the conference; therefore, charging the vendors a fee creates no obligation and does not tend to adversely reflect on a judge's impartiality or judicial office.

In conclusion, a judicial association may charge a vendor a fee in excess of $100 if the fee charged the vendor is limited to an amount reasonably calculated to represent the costs incurred by the association in making space available to the vendor or, if there is no additional cost to the association in making space available to vendors, the fee charged the vendor is not used to offset the cost of the conference itself, but rather is meticulously accounted for as a contribution to the association and used for other functions of the association such as ". . . the improvement of the law, the legal system, or the administration of justice" in accordance with MCJC 4C. The treasurer of the organization, who is a judge, may receive the fee and handle those funds on behalf of the organization in order to deposit them in the organization's bank account as it would not constitute a solicitation, nor would it tend to adversely reflect on the judge's impartiality or judicial office for the reasons stated previously.

1 "benefit" is defined as something helpful, favorable, profitable, or does good for in the Merriam-Webster Collegiate Dictionary, 11th Edition (2008)

2 Merriam-Webster Collegiate Dictionary, 11th Edition (2008)

3 Merriam-Webster Collegiate Dictionary, 11th Edition (2008)

4 Merriam-Webster Collegiate Dictionary, 11th Edition (2008)