Title 207—JUDICIAL CONDUCT PART II. CONDUCT STANDARDS [ 207 PA. CODE CH. 33 ] Formal Opinion 2014-1 [44 Pa.B. 6083]
[Saturday, September 27, 2014]Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has adopted its Formal Opinion 2014-1 which is set forth as follows.
EDWARD D. REIBMAN,
Chairperson
Ethics Committee
Pennsylvania Conference of State Trial JudgesAnnex A TITLE 207. JUDICIAL CONDUCT PART II. CONDUCT STANDARDS CHAPTER 33. CODE OF JUDICIAL CONDUCT Subchapter B. FORMAL OPINIONS § 14-1. Social Activities.
The Ethics Committee of the Pennsylvania Conference of State Trial Judges (the ''Committee'') regularly receives inquiries regarding the propriety of judges attending social activities.i By order of the Supreme Court of Pennsylvania, a new Code of Judicial Conduct (the ''new Code'') became effective on July 1, 2014. Although the new Code is more expansive than, and in some respects significantly different from, the prior Code of Judicial Conduct (''the old Code''), many of the relevant provisions of the old Code have been incorporated into the new Code. The Committee has issued a body of informal opinions under the old Code. It now issues this Formal Opinion to provide broad guidance to those subject to the new Code as they transition to its provisions.ii
As is always the case, if a judge has a specific question concerning the application of these general guidelines to his or her prospective behavior, and wishes to enjoy the rule of reliance on the Committee's advice,iii the judge should make a written request for advice from the Committee.
Social Activitiesiv
In general, inquiries to the Committee concerning social activities have involved (A) attorneys, law firms and attorney associations; (B) charitable organizations; and (C) other types of events.
A. Social Activities Involving Attorneys, Law Firms and Attorney Associations
The Committee has approved attendance at the following social activities sponsored by attorneys, law firms and attorney organizations under the old Code; and, as a general matter, the result would be the same under the new Code:v
• A ceremonial and social function held by a plaintiffs' bar association. (2/21/01)
• A bar association event held at a private law firm. (4/16/01)
• A summer associate reception at a law firm where the judge's spouse is a partner. No clients will be in attendance; and all spouses/significant others are invited. (5/27/07)
• A plaintiffs' bar association awards dinner which is a fund raising event. (10/1/09)
• A CLE program conducted by a criminal defense organization where the program has been approved for CLE credit, is open to the general bar, is held in a public forum, and is free to judges. (4/28/10)
• A charity concert at a public venue when the tickets were purchased for the judge and the judge's spouse by the spouse's firm. The judge will not be sitting with the firm's clients. (5/7/10)
• The wedding of a former law clerk, who is now a local lawyer not currently involved in litigation before the judge. (9/19/12)
• A public event in a law firm's sky box suite where the firm has not appeared before the judge in any civil/criminal matter. (2/28/13)
The Committee has advised attendance at the following events could be violative of the old Code; and, as a general matter, the result would be the same under the new Code:
• Judge may not serve as a keynote speaker before an insurance industry group. (9/8/03)
• A legal seminar conducted solely for the members of the sponsoring firm. (9/8/04)
• A seminar given only for members of a certain law firm at the firm's office. (6/20/05)
• A spouse's firm retreat (including dinners and social events), even where the judge pays for his/her own airfare, lodging, and food.
• The retreat includes a dinner where the spouse would entertain clients and the judge would attend as the spouse's guest. (4/5/06)
• A private firm event featuring a well-known political commentator. The event is not held at the firm, but clients and prospective clients of the firm will be present. (9/15/08)
• A private party following a charity concert where the party is held by a spouse's firm for the purpose of entertaining clients. (5/7/10)
• An event open to the general bar, sponsored by a nonprofit, and held at a private law firm. The title of the event indicates that judges will be featured attendees. (8/26/10)
• An award breakfast honoring a retired U. S. Supreme Court Justice where clients of the firm will attend. (5/28/13)
In deciding whether to attend social functions sponsored by attorneys, law firms, and attorney associations, a judge should review the following non-exhaustive list of considerations implicated by the Code:
1. Is the event intended to improve the law, the legal system, or the administration of justice, or is it purely a social function?
2. Are the sponsoring attorneys currently involved or likely to be involved in litigation before the judge?
3. Is the event held at a law firm or off site?
4. Is attendance limited to attorneys in the sponsoring firm or is it open to other attorneys and/or the general public?
5. Will the firm's clients or potential clients attend the event?
6. Will an appearance at the social event convey the impression that the sponsors are in a special position to influence the judge?
7. Will the judge's presence be advertised in advance of the event or will the judge be recognized during the event?
8. In the case of an event sponsored by an attorney association, is the function limited to one sector of the bar, such as the plaintiffs' bar, defense counsel, prosecutors, etc.?
9. Will attendance at the function call into question the judge's impartiality?
10. Will attendance interfere with the performance of the judge's judicial duties?
B. Social Activities Sponsored by Charitable Organizations
The old Code stated judges were not permitted to ''. . . solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of their office for that purpose . . . [or] . . . be a speaker or the guest of honor at an organization's fundraising events, but they may attend such events.''vi Accordingly, under the old Code the Committee approved attendance at the following social events sponsored by charitable organizations while, in some cases, noting particular concerns about the event:vii
• A nonprofit organization's fundraising event; however, where the judge would be given a free ticket to the event, there was concern that the organization intended to showcase the judge, which would be prohibited. (2/5/99)
• A charitable event if the judge is not being showcased as a means to encourage others to contribute. (4/11/05)
• A charitable event including a free ticket, if doing so would not reflect adversely on impartiality, interfere with the judge's ability to perform, or give the appearance of impropriety. (4/11/05)
• A Citizens' Crime Commission (a 501(c)(3) nonprofit) cocktail party as long as the judge is neither listed in the program nor an honoree. (2/28/06)
• A ''Dancing with the Stars'' event, when the judge's name is not used in advance publicity; the judge is identified at the dance by name, not title; the judge will be identified in the program as ''guest dancer;'' the judge will purchase his own ticket; and attendees will not bid on the judge's dance or pay extra because the judge is participating. (1/21b/2009)
Under the new Code, Rule 3.7(B)(2) permits judges to be a guest speaker or guest of honor at fundraising dinners or events that are for the advancement of the legal system, and have their name listed in the program; but, otherwise, the new Code continues to prohibit judges from being the guest speaker or guest of honor at fundraising dinners or events for other causes.
With respect to a judge receiving a free ticket to an event, or receiving other things of value, Rule 3.13(A) of the new Code prohibits such acceptance if ''. . . prohibited by law or would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality.'' However, subject to Rule 3.13(A) and the reporting requirements of Rule 3.15, Rule 3.13(C) permits judges to accept ''. . . invitations to the judge and the judge's spouse, domestic partner, or guest to attend without charge: (a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or (b) an event associated with any of the judge's educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge. . . .''
Faced with reduced budgets and shrinking charitable contributions, organizations have turned to novel and creative fundraising efforts to swell the crowd or otherwise raise money by involving judges. Examples of using a judge as an attraction or celebrity participant include ''Dancing with the Stars'' events, competing with judges in sporting events, and the judge as a celebrity auctioneer. While celebrities and other government officials may lend their personal or professional status to an organization's fundraising efforts, a judge is prohibited from doing so. A judge may not permit an organization to capitalize on or exploit his or her attendance at or participation in such an event by advertising that fact on invitations or other promotional materials in advance of an event that is not for the advancement of the legal system. A judge who allows himself or herself to be used in this manner is engaged in the solicitation of funds in direct violation of the Code. These prohibitions apply regardless of the worthiness of the charity. See Formal Opinion 2011-1 (Certain Fundraising Activities).
Most importantly, the judge must determine whether he/she is the ''draw'' for the charitable activity and, if so, decline the invitation. If the judge will be ''showcased,'' thus allowing the prestige of the office to be used for the benefit of a charity that is not for the advancement of the legal system, the judge is prohibited from attending.
C. Other Types of Social Activities
Many social events fall outside the basic categories outlined in this Formal Opinion and can only be addressed on a case-by-case basis. Attendance at the following events was permitted by the Committee under the old Code based upon the specific facts represented in the inquiry:
• The inauguration of a university president and related social events. (9/6b/00)
• An elected official's inaugural ball. (12/17/01)
• A judicial symposium held by a nonpartisan group including lodging, meals, and money to defray transportation costs. (12/14b/04)
• A privately funded seminar with a partisan agenda, if the identity of the sponsors is publicized. (12/14b/04)
However, the Committee advised against accepting dinner at a private club as the guest of a senior judge whom the inquiring judge recently appointed in several cases. (12/12/13)
Conclusion
Judges must expect to be the subject of constant public scrutiny. They must freely and willingly accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen. This does not mean, however, that judges must isolate themselves from society or decline all social invitations. Indeed, the new Code continues to encourage judges to be involved in the communities in which they serve. However, the need to maintain an impartial and independent judiciary gives rise to special concerns. Accordingly, judges must carefully consider the ramifications of all social activities, both personal and judicial, to ensure that they uphold the independence, integrity, and impartiality of the judiciary, avoid impropriety and the appearance of impropriety, and do not lend the prestige of their office to advance the private interests of others. To that end, therefore, judges must be attentive to strictures that continue to be imposed by the new Code in relation to social activities. These include factors to be considered in deciding whether to attend social functions sponsored by attorneys, law firms, and attorney associations as well as social events sponsored by charitable organizations.
This Formal Opinion is intended to provide judges with broad guidance regarding one of the Ethics Committee's most frequent areas of inquiry. And judges are reminded that to enjoy the rule of reliance on the Committee's advice, they should make a written request for advice from the Committee tailored to the particular situation confronted. If a judge has a question concerning the application of these guidelines, the judge should make a written request for advice from a member of the Committee. The new Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed.
i This Formal Opinion does not purport to address political events.
ii While the entire new Code is relevant, the following are the particularly relevant provisions of the new Code:
Canon 3: A judge shall conduct the judge's personal and extrajudicial
activities to minimize the risk of conflict with the obligations of
judicial office.Rule 3.1. Extrajudicial Activities in General.
Judges shall regulate their extrajudicial activities to minimize the risk of conflict with their judicial duties and to comply with all provisions of this Canon. However, a judge shall not:
(A) Participate in activities that will interfere with the proper performance of the judge's judicial duties;
(B) Participate in activities that will lead to frequent disqualification of the judge;
(C) Participate in activities that would reasonably appear to undermine the judge's independence, integrity, or impartiality;
(D) Engage in conduct that would reasonably appear to be coercive; or
(E) Make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for activities that concern the law, the legal system, or the administration of justice, or unless such additional use is permitted by law.
Comment [1]: To the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal or civic extrajudicial activities not conducted for profit, even when the activities do not involve the law. See Rule 3.7.
Comment [2]: Participation in both law-related and other extra-judicial activities helps integrate judges into their communities, and furthers public understanding of and respect for courts and the judicial system.
Comment [3]: . . . a judge's extrajudicial activities must not be conducted in connection or affiliation with an organization that practices invidious discrimination. See Rule 3.6.
Comment [4]: While engaged in permitted extrajudicial activities, judges must not coerce others or take action that would reasonably be perceived as coercive.
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Rule 3.4. Appointments to Governmental Positions and Other Organiza-
tions.(A) judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.
(B) 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 shall not personally solicit funds but may attend fundraising events for such organizations.
(C) Senior judges eligible for recall to judicial service may accept extrajudicial appointments not permitted by Rule 3.4(B) but during the term of such appointment shall refrain from judicial service.
Comment [1]: Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge's time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.
Comment [2]: A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a governmental position.
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Rule 3.6. Affiliation with Discriminatory Organizations.
(A) A judge shall not hold membership in any organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation.
(B) A judge shall not use the benefits or facilities of an organization if the judge knows or should know that the organization practices invidious discrimination on one or more of the bases identified in paragraph (A). A judge's attendance at an event in a facility of an organization that the judge is not permitted to join is not a violation of this Rule when the judge's attendance is an isolated event that could not reasonably be perceived as an endorsement of the organization's practices.
Comment [1]: A judge's public manifestation of approval of invidious discrimination on any basis gives rise to the appearance of impropriety and diminishes public confidence in the integrity and impartiality of the judiciary. A judge's membership in an organization that practices invidious discrimination creates the perception that the judge's impartiality is impaired.
Comment [2]: An organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, sex, gender, religion, national origin, ethnicity, disability or sexual orientation persons who would otherwise be eligible for admission. Whether an organization practices invidious discrimination is a complex question to which judges should be attentive. The answer cannot be determined from a mere examination of an organization's current membership rolls, but rather, depends upon how the organization selects members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural values of legitimate common interest to its members, or whether it is an intimate, purely private organization whose membership limitations could not constitutionally be prohibited.
Comment [3]: When a judge learns that an organization to which the judge belongs engages in invidious discrimination, the judge must resign immediately from the organization.
Comment [4]: A judge's membership in a religious organization as a lawful exercise of the freedom of religion is not a violation of this Rule.
Comment [5]: The Rule does not apply to national or state military service.
Rule 3.7. Participation in Educational, Religious, Charitable, Fraternal
or Civic Organizations and Activities.(A) Avocational activities. Judges may write, lecture, teach, and speak on non-legal subjects and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of their office or interfere with the performance of their judicial duties.
(B) Civic and Charitable Activities. Judges may participate in civic and charitable activities that do not reflect adversely upon their impartiality or interfere with the performance of their judicial duties. Judges may serve as an officer, director, trustee, or nonlegal advisor of an educational, religious, charitable, fraternal, or civic organization not conducted for the economic or political advantage of its members, subject to the following limitations:
(1) A judge shall not serve if it is likely that the organization will be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.
(2) A judge shall not personally solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the judicial office for that purpose, but may be listed as an officer, director, or trustee of such an organization. A judge shall not be a speaker or the guest of honor at an organization's fundraising events that are not for the advancement of the legal system, but may attend such events.
(3) A judge shall not give investment advice to such an organization.
(C) Notwithstanding any of the above, a judge may encourage lawyers to provide pro bono publico legal services.
Comment [1]: The nature of many outside organizations is constantly changing and what may have been innocuous at one point in time may no longer be so. Cases in point are boards of hospitals and banks. Judges must constantly be vigilant to ensure that they are not involved with boards of organizations that are often before the court.
Comment [2]: Judges are also cautioned with regard to organizations of which they were members while in practice, and/or in which they remain members, such as the District Attorney's organization, the Public Defender's organization, and MADD, as examples only. Review should be made to make sure that a reasonable litigant appearing before the judge would not think that membership in such an organization would create an air of partiality on the part of the tribunal.
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Rule 3.13. Acceptance of Gifts, Loans, Bequests, Benefits, or Other
Things of Value.(A) A judge shall not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance is prohibited by law or would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality.
(B) Unless otherwise prohibited by law, or by paragraph (A), a judge may accept the following without publicly reporting such acceptance:
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(3) ordinary social hospitality
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(8) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge's household, but that incidentally benefit the judge.
(C) Unless otherwise prohibited by law or by paragraph (A), a judge may accept the following items, and must report such acceptance to the extent required by Rule 3.15:
(1) gifts incident to a public testimonial;
(2) invitations to the judge and the judge's spouse, domestic partner, or guest to attend without charge:
(a) an event associated with a bar-related function or other activity relating to the law, the legal system, or the administration of justice; or
(b) an event associated with any of the judge's educational, religious, charitable, fraternal or civic activities permitted by this Code, if the same invitation is offered to nonjudges who are engaged in similar ways in the activity as is the judge; and
(3) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.
(D) A judge must report, to the extent required by Rule 3.15, gifts, loans, bequests, benefits, or other things of value received by the business, profession, or other separate activity of a spouse, a domestic partner, or other family member of a judge residing in the judge's household, if the source is a party or other person, including a lawyer, who has come or is likely to come before the judge, or whose interests have come or are likely to come before the judge.
Comment [1]: Whenever a judge accepts a gift or other thing of value without paying fair market value, there is a risk that the benefit might be viewed as a means to influence the judge's decision in a case. Rule 3.13 restricts the acceptance of such benefits, according to the magnitude of the risk. Paragraph (B) identifies circumstances in which the risk that the acceptance would appear to undermine the judge's independence, integrity, or impartiality is low, and explicitly provides that such items need not be publicly reported. As the value of the benefit or the likelihood that the source of the benefit will appear before the judge increases, the judge is prohibited under para
* * * * * Comment [4]: Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nonetheless, if a gift or other benefit is given to the judge's spouse, domestic partner, or member of the judge's family residing in the judge's household, it may be viewed as an attempt to evade Rule 3.13 and influence the judge indirectly. This concern is reduced if the judge merely incidentally benefits from a gift or benefit given to such other persons. A judge should, however, inform family and household members of the restrictions imposed upon judges, and urge them to consider these restrictions when deciding whether to accept such gifts or benefits.
* * * * * In addition, the following are over-arching principles implicated generally in determining whether a judge may attend or otherwise participate in social functions: Canon 1 (''[a] judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety''); Rules 1.1 (judge to comply with the law) and 1.2 (judge to promote public confidence in the judiciary); and Comments 1 (principles apply to both the professional and personal conduct of a judge), 2 (judge to accept restrictions that might be viewed as burdensome if applied to other citizens), 3 (rule necessarily cast in general terms), 4 (judge to promote ethical conduct and support professionalism within the judiciary and legal profession), 5 (test for appearance of impropriety is whether conduct ''would create in reasonable minds a perception'' that the judge violated Code or engaged in ''other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as judge,'' and 6 (judge to act in manner consistent with Code while participating in outreach activities), Rule 1.3 (judge not to abuse the prestige of judicial office to advance personal or economic interests of the judge or others, or allow others to do so), and Comment 1; and Canon 2 (''A judge shall perform the duties of judicial office impartially, competently, and diligently''); Rule 2.1 (duties of judicial office ordinarily take precedence over judge's personal and extrajudicial activities), and Comments 1 (judge to arrange personal and extrajudicial activities to minimize interference with judge's duties) and 2 (judge to minimize risk of conflicts that would result in frequent disqualification), Rule 2.4 (B) (judge not to permit social interests or relationships to influence judicial conduct or judgment), and Rule 2.4 (C) (judge not to convey or permit others to convey impression judge can be influenced) and Comment (confidence in judiciary eroded if judicial decision-making is perceived to be subject to inappropriate outside influences).
The Terminology section of the new Code provides the following definitions:
Impartial, impartiality, impartially—Absence of bias or prejudice in favor of, or against, particular parties or classes of parties, as well as maintenance of an open mind in considering issues that may come before a judge.
* * * * * Impropriety—includes conduct that violates the law, court rules, or provisions of this Code, and conduct that undermines a judge's independence, integrity, or impartiality.
Independence—A judge's freedom from influence or controls other than those established by law or Rule.
Integrity—Probity, fairness, honesty, uprightness, and soundness of character.
iii Under both the old Code and the new Code, the Committee is designated by the Supreme Court ''as the approved body to render advisory opinions regarding ethical concerns involving judges . . . subject to the Code of Judicial Conduct.'' As both Codes further provide, ''Although such opinions are not, per se, binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania,'' action taken in reliance thereon and pursuant thereto ''shall be taken into account in determining whether discipline should be recommended or imposed.''
iv For purposes of this Opinion, the words ''activities,'' ''events,'' and ''functions'' are used interchangeably.
v Each Ethics Committee Opinion is based on a specific set of facts outlined by the inquiring judge. These facts may not be fully set forth in the Digest version of the Opinion (for example, to maintain the confidentiality of the inquirer). Readers are cautioned that the Judicial Conduct Board, the Court of Judicial Discipline, and/or the Supreme Court will only consider a judge's reliance on an advisory opinion rendered in response to that judge's personal inquiry (not an Opinion rendered to another judge) in determining whether discipline should be recommended or imposed.
vi Canon 5B(2) of the old Code.
vii See Footnote 2. graph (A) from accepting the gift, or required under paragraph (C) and (D) to publicly report it.
[Pa.B. Doc. No. 14-1989. Filed for public inspection September 26, 2014, 9:00 a.m.]
