Ticket Upgrades And Judicial Ethics

A recent opinion from Florida’s Judicial Ethics Advisory Committee:

FACTS

The inquiring judge asks for an opinion interpreting Canons 5D(5)(e)and 5D(5)(h), relating to tickets to sporting events. An apparenthockey fan, the inquiring judge is a season ticket holder and has a“close personal [lawyer] friend” with access to the friend’s law firm’ssuite/skybox tickets which have a higher value than the judge’stickets. On occasion the judge and the lawyer/friend exchange tickets. At other times, once the judge is already admitted into the arena, thelawyer/friend provides the judge access to the firm’s suite/skyboxduring the game. The inquiring judge adds that no one in thelawyer/friend’s firm appears before the judge.

DISCUSSION

Canon 5D regulates a judge’s financial activities.  Specifically, Canons 5D(5)(e) and (h) provide, in pertinent part,

(5) A judge shall not accept… a gift, bequest, favor or loan from anyone except for:

(e) a gift, bequest, favor or loan from a relative or close personalfriend whose appearance or interest in a case would in any eventrequire disqualification under Canon 3E;

(h) any other gift,bequest, favor or loan, only if: the donor is not a party or otherperson who has come or is likely to come or whose interests have comeor are likely to come before the judge; and, if its value, or theaggregate value in a calendar year of such gifts, bequests, favors, orloans from a single source, exceeds $100.00, the judge reports it inthe same manner as the judge reports gifts under Canon 6B(2).

Succinctly stated, Canon 5D(5)(e) permits a judge to accept giftsfrom close friends whose appearance in a case would otherwise requiredisqualification, and Canon 5D(5)(h) permits a judge to accept giftsfrom donors who have not and are unlikely to come before the judge.  Inthe latter, if the aggregate value of the gift(s) in a calendar yearexceeds $100.00, the judge must report the gift as required by Canon6B(2).

Although the inquiring judge narrowly asks whether and how to reportthe tickets as gifts, the Committee broadens the inquiry to include adiscussion of whether receipt of the tickets is permissible.

As explained above, judges may accept gifts from close personal friends whose appearance in a case would otherwise require disqualificationunder Canon 3E.  The inquiring judge refers to the attorney as a “closepersonal friend”.  Therefore, this Committee presumes that, absent theticket exchange, the friendship ties with the attorney would be the only factor requiring disqualification of the inquiring judge.  See e.g.,Canon 3E(1)(b) (disqualification required where a lawyer with whom thejudge previously practiced law served during such association as alawyer concerning the matter).

Obviously, this Committee is in no position to assess the nature ofa judge’s friendships; only an individual judge can determine whether afriendship with an attorney or party is such that one may havereasonable concern over the judge’s impartiality.  In this regard, inJEAC Op. 04-35, this Committee opined that a judge must disclosea friendship with an attorney if, in the judge’s estimation, the natureof the friendship is sufficient to warrant reasonable concern over thejudge’s impartiality.  It is important to note that not allfriendships, even close personal ones, require disqualification. 

Rather, in many instances, disclosure is appropriate. See JEAC Op. 93-7 (if a judge maintains strong social ties with an attorney disclosure would be appropriate or necessary); JEAC Op. 89-3 (social relationship with an attorney and occasional hunting partner who permitted access to a cabin must be disclosed).  

It remains this Committee’s opinion that the inquiring judge mustdetermine, absent the ticket exchange, whether disclosure ordisqualification is the most appropriate remedy if this attorney, oranyone from the law firm, would appear before the judge.  ThisCommittee also adds that, as in JEAC 04-35 and JEAC Op. 89-3, the acceptance of gifts may exacerbate the need for disqualification, when disclosure alone may have been appropriate. 

As such, in adherence to Canon 2B, which provides that “a judgeshall not allow family, social, political or other relationships toinfluence the judge’s judicial conduct or judgment” and that a judgeshall not “convey or permit others to convey the impression that theyare in a special position to influence the judge” if the inquiringjudge would merely disclose the relationship absent theticket exchange, it is incumbent on the inquiring judge to refrain fromaccepting gifts from this lawyer/friend.  However, after searching hisor her conscience, if the inquiring judge determines thatdisqualification from any matter involving the subject lawyer/friendwould be required absent the ticket exchange, then the inquiring judgemay accept gifts subject to the disqualification requirement in anycase involving anyone from the firm.

Regarding the gift reporting requirement, JEAC Op. 02-20,summarizes the application of Canon 5D(5) as follows, “[G]iftsdescribed in (a) through (g) of 5(D)(5) need not be reported. The Judgemust only report gifts that fall under the provisions of Canon5D(5)(h), if the aggregate value exceeds $100.00, rather than everygift received from the spouse, children, siblings, and close personalfriends.”  See also JEAC Op. 03-10. Thus, if the gifts are accepted under Canon 5D(5)(e), the inquiringjudge is not required to report the gifts pursuant to Canon 6B(2). Therefore, the inquiring judge must first resolve the disclosure versusdisqualification issue regarding appearances of the “close personalfriend”.  Depending on the resolution of that issue, the judge may berequired to undertake an analysis of the appropriate value of thegifts, as explained below.

Canon 5D(5)(h) and Canon 6B(2) require the judge to report theaggregate value of any gifts received exceeding $100.00.  The inquiringjudges asks, in attempting to comply with the gift reportingrequirement, “may the aggregate value of the tickets exchanged beutilized to determine if there is a net difference in excess of $100”and “if the aggregate value of the tickets exchanged nets out to beless than $100 are the tickets exempt from disclosure pursuant to Canon5D(5)(h)?”    In short, the inquiring judge asks, whether an offset maybe applied for the value of the tickets given to the attorney inexchange for the value of the tickets received by the judge. 

This issue is easily resolved by considering the practicalapplication of the inquiry.  Application of an offset in determiningwhether a judge received a gift valued at $100.00, would allow a judgeto devalue the amount of any gift received merely by giving agift to the donor in return.  To permit a judge to offset the value ofany gift received by giving a gift in return would subvert the clearspirit of the Code.  Accordingly, if the gift is one accepted underCanon 5D(5)(h), the inquiring judge must report the totalvalue of the tickets received in complying with the reportingrequirements of Canon 6B, without consideration of the value of thetickets exchanged.  In calculating the amount, the inquiring judge mustalso consider the value of the suite/skybox.  See JEAC Op. 89-03 (contributions to son’s quail-raising hobby and use of North Carolina cabin are reportable gifts). 

Finally, this Committee recommends that the inquiring judge consider In re: Luzzo,756 So. 2d 76 (Fla. 2000) involving a judge’s acceptance of FloridaMarlins baseball game tickets valued at $16.00 to $18.00, apiece from alaw firm whose lawyers appeared before him in at least two cases. Here, the inquiring judge states that “no one in [the friend’s] firmappears before me.” While such may be the case currently, as judges areoften transferred to varying divisions of the Court, there is nodefinitive way to determine whether a case is “likely to come beforethe judge.”  Canon 5D(5)(h).  As a result, this Committee cautions thejudge to regulate his/her extrajudicial activities to minimize the riskof conflict.  See, generally, Canon 5A.

(MIke Frisch)