JI-156

February 9, 2024

SYLLABUS

Judicial officers may attend a law firm’s event, but before doing so, should consider several factors and ensure that there is no appearance of impropriety, no detraction from the dignity of their office, and no interference with the performance of judicial duties.
References: MCJC 2(A), (B), and (C); MCJC 3(B)(2); MCJC 3(C), MCJC 4(B) and (E); JI-146, J-006; MCR 2.003, and In re Haley, 476 Mich. 180, 192, 720 NW2d 246 (2006).

TEXT

Judicial officers routinely inquire whether there are ethical issues they must consider when invited to attend events  hosted by law firms. Specifically, inquiries have centered on whether attending these events creates the appearance of impropriety in violation of Canon 2 and how this attendance intersects with permitted activities under Canon 4.

Relevant Code Provisions:

Canon 2. A judge should avoid impropriety and the appearance of impropriety in all activities.

1. 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.
2. A judge should respect and observe the law. At all times, the conduct and manner of a judge should promote public confidence in the integrity and impartiality of the judiciary. Without regard to a person’s race, gender, or other protected personal characteristic, a judge should treat every person fairly, with courtesy and respect.
3. A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others, but participation in activities allowed in Canon 4 is not a violation of this principle./li>

Canon 4. A judge may engage in extrajudicial activities.

… A judge should regulate extrajudicial activities to minimize the risk of conflict with judicial duties.
A judge may engage in the following activities: …

2. Avocational Activities. A judge may write, lecture, teach, speak, and consult on nonlegal subjects, appear before public nonlegal bodies, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the office or interfere with the performance of judicial duties.

5. Financial Activities.

(4) 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.

DISCUSSION

Judges may accept “ordinary social hospitality,” following Canon 4(E)(4)(b). It is perfectly acceptable for a judge to be a member of society, extend common courtesies, and actively participate in certain events. However, attendance must be carefully analyzed due to the high standard that is placed on judges. Upon receiving an invitation to a law firm or a sponsored event, judicial officers should first consider several factors to determine whether it would be appropriate for them to attend while simultaneously avoiding the appearance of impropriety and maintaining the dignity of their judicial office. These factors are:

1. whether the event is by invitation only or open to the public;
2. who the hosts and sponsors of the event are;
3. who will be attending the event;
4. whether any lawyers or persons attending the event will appear before the judge in any active cases;
5. whether gifts or items of a monetary value will be provided at a charge or no charge and what is the approximate monetary value of the gifts and/or hospitality that are being provided;
6. whether the event will be displayed on any type of format, i.e., social media;
7. the relationship between the judge and the host(s) and sponsor(s) of the event; and
8. any other circumstances relating to the event that, if the judicial officer attended, may require the judicial officers to disqualify themselves in the future.

To begin an analysis of whether a judge should attend an event, it is imperative to know the definition of “ordinary social hospitality,” concerning which ethics opinion JI-146 says:

…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). 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.

A judicial officer’s analysis begins with reviewing the definition of “ordinary social hospitality” and whether an event falls under the concept of ordinary social hospitality or whether the judge’s attendance is meant to merely bolster the prestige of the law firm. Subsequently, the judicial officer must delve deep into Canon language.

Canon 2 Analysis:

Judicial officers must consider whether attending a law firm event will compromise their duty to avoid impropriety or even the appearance of impropriety as well as whether attendance would lower the public’s confidence in the integrity and impartiality of the judiciary per Canon 2(A) and (B). Depending on circumstances, attendance at a law firm event may suggest to the public that the law firm has a special relationship or influence over the judicial officer, creating the appearance of partiality of the judicial officer towards the firm. Canon 2(C) provides that a judge should not allow “social[ ] or other relationships to influence judicial conduct or judgment.” To determine whether attendance at the law firm event would invite the appearance of impropriety or influence and considering the objective lens standard as described in In re Haley as well as the ethical guidance found in JI-146, a judicial officer must consider attendance from the perspective of a reasonable objective observer.

Judicial officers must consider whether their attendance carries the prestige of their office and lends credence to the law firm and/or the event in violation of Canon 2(C). While a law firm’s event may be a social affair initially thought to be ordinary social hospitality, judicial officers must be aware that law firm events are often attended by lawyers, spouses, clients, and prospective clients and are typically used to promote the business of the law firm. Concerning financing, law firms usually consider these events as business expenses. This consideration should be taken into account when a judicial officer is considering an invitation to an event.

Canon 4 Analysis:

Canon 4(B) provides that a judge may engage in “social or recreational activities” as long as the activities do “not detract from the dignity of the office or interfere with the performance of judicial duties.” There is no outright prohibition from attending law firm events, but there are limitations judicial officers must be aware of.

The Committee previously determined in ethics opinion JI-146 that “[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.” The opinion further emphasizes that “judges have a duty to uphold the integrity and independence of the judiciary.”

Examples of what may constitute a gift under the ordinary social hospitality concept are provided in ethics opinion JI-146. Canon 4(E)(4)(a) states that judicial officers are limited in the amount and types of gifts received. Further, JI-146 provides the following examples of gifts that are not typically considered “ordinary social hospitality”:

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.
…
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 findings made previously by the Committee, receiving gifts at a law firm event when persons from the event are before the judge or are likely to come before the judge is prohibited. Further, persons involved in a proceeding before a judge may be concerned that a judge’s decision regarding their matter may be influenced by these items received at the law firm event or by the judge attending the event.

It should be noted that each year, before the beginning of the year-end holiday season, the State Court Administrative Office issues a memorandum reminding judicial officers and court personnel of the importance of not accepting gifts to maintain the high standards provided by Canon 4(E)(4) and Canon 3(B)(2). For example, the most recent memorandum at the time this opinion was drafted reads as follows:

At this time of the year, it may be 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. Judges should require court staff under their direction to observe the same 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.^[1]

This annual memorandum emphasizes the importance of ongoing caution for judicial officers to avoid the unintended consequences of well-intended lawyers or parties giving gifts to judicial officers and court personnel. A similar caution applies to mitigate risks arising from well-intended lawyers or law firms inviting judicial officers to their law firm events. While there are exceptions to every rule, as the Committee has found in various opinions,  scrutiny and analysis are required regarding every invitation a judicial officer receives. ^[2]

Examples

Taking into consideration the analyses of Canons 2 and 4, the following examples of attendance at law firm events do not seem to be a violation of the Canons:

• Attendance at a firm event for a firm where the judicial officer was previously employed as long as the firm is the host and sponsor of the event.
• Attendance at law firm events hosted by a law firm for events that are not in violation of Canon 4(E)(4).
  • Judicial officers should use caution in attending an event if the event is being paid for or sponsored by an entity that may come before the court or the entity’s product is a product the court relies on when making decisions, for example, the event is sponsored by an entity that manufactures breathalyzers.
• Complimentary breakfasts, luncheons, dinners, functions, or seminars sponsored by local, state, or national bar associations.
• Attendance at a law firm’s holiday party that includes drinks and hor d’oeuvres.
• Events that provide meals, gifts, or other items subject to Canon 4(E)(4) and as guided by JI-146.

The following examples of attendance at law firm events seem to be a violation of the Canons:

• Attendance at a law firm event that would be in violation of Canon 4(E)(4).
• Attendance at a private or exclusive club, organization, or other entity. Examples of exclusivity include, but are not limited to, disability, race, national origin or ethnicity, gender, gender identity or sexual orientation, religion, age, or socio-economic status.
• Weekend outing sponsored by a law firm or other entity.
• Attendance at an event that may create the appearance of bias due to the reason for the event.
• Sponsored events hosted to promote a certain brand, e.g., breathalyzers.
• Any event that may require the judicial officer to recuse themselves at a later time.
• Sponsored events hosted to promote a certain brand that may create the appearance of impropriety due to the use of certain products within the justice system, for example, an entity that manufactures courtroom technology.
• An event that may require judicial officers to recuse themselves at a later time.

It should be noted that recusal or disqualification motions may come before judges due to their attendance at an event. However, the judicial officer must consider the motion under Canon 3(C) and MCR 2.003 but should not automatically grant the motion. Consideration of the motion and a finding regarding the motion must be in accordance with MCR 2.003. Ethics opinion J-006 provides a further analysis regarding judicial disqualification.

CONCLUSION

Judicial officers must be cognizant of their role within the judicial system and must maintain the public’s confidence in the judiciary. When receiving an invitation to an event, there are many factors that a judicial officer must consider. Therefore, before accepting any invitation to any type of event, the judicial officer must be vigilant and complete an analysis to ensure compliance with the Michigan Code of Judicial Conduct.

When judicial officers attend events given by law firms, the judicial officers should:

1. be aware that a broad range of the Bar and the public attend these events;
2. be cognizant that oftentimes these events are photographed and placed in the view of the public and that these photographs may be manipulated and used for the gain of the host or user of the photograph, for example, in print media, social media, et cetera.;
3. avoid situations where lawyers may attempt to engage the judicial officer in ex parte communication on a pending or forthcoming case; and
4. refrain from discussing pending cases with any person.

Judicial officers are stewards of the bench and must hold themselves accountable and remember they are held to a higher standard than that to which a colleague of the Bar is held. They must represent the dignity of their office and ensure that they are not influenced or show the appearance of impropriety on the bench and in their day-to-day activities. This does not mean they are unable to engage in “ordinary social hospitality” activities, but they should complete the analysis to ensure the engagement falls under the “ordinary social hospitality” concept and that attendance at the event does not cross the line of conduct that is prohibited by the Michigan Code of Judicial Conduct.