May 26, 1989

The Ethics Advisory Committee has been asked for its opinion whether the acceptance of Christmas gifts constitutes 'ordinary social hospitality' which is permissible under the Code or whether judges or other court employees are prohibited from accepting Christmas gifts from lawyers and others who may appear before the court.

It is the committee's opinion that for the purposes of this opinion request. Christmas gifts do not constitute "ordinary social hospitality" and that the Code of Judicial Conduct prohibits judges from accepting such gifts, but that court clerks, court reporters and other court employees may accept gifts of nominal value at Christmas time.

Canons 2 and 5 of the Utah Code of Judicial Conduct are the pertinent provisions of the Code. Canon 2(B) provides that a judge should not convey or permit others to convey the impression that they are in a special position of influence.

Canon 5(C)(4) states: A judge should not accept nor the judge knowingly permit a member of the family to accept a gift. bequest. favor, or loan from anyone except as follows:

           (a) they may accept a gift incident to a public testimonial; books supplied by publishers on a complimentary basis for official use. or an invitation to attend a bar-related function or activity devoted to the improvement of the law, the legal system, or the administration of justice. To the extent a gift does not reflect adversely on the judge's impartiality, a part-time judge may accept gifts which are incident to some other profession or occupation to which the judge devotes time as permitted by law.

           (b) they 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 terms generally available to persons who are not judges;or a scholarship or fellowship awarded on the same terms applied to other applicants:

           (c) they 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.

Christmas gifts do not fall within any of the exceptions set forth in subdivisions (a) and (b) of Canon 5(C)(4). Moreover, in the present situation. the Christmas gifts are being offered by precisely the category of persons prohibited by subdivision (c); parties or other persons whose interests have come or are likely to come before the judge.

The American Bar Association's Committee on Ethics and Professional Responsibility in Informal Opinion 927 concluded that it is improper for judges to accept Christmas presents from lawyers practicing before them. That opinion was based on former Judicial Canon 32, which is similar to Canon 5(C)(4)(c) and provided: "A judge should not accept any presents or favors from litigants or from lawyers practicing before him or from others whose interests are likely to be submitted to him for judgment." The committee also quoted Henry S. Drinker in his book Legal Ethics, at page 275 as follows:

           A lawyer may not properly give presents to or bestow favors on judges before whom he might appear as counsel or litigant, nor may a judge accept such from lawyers, litigants, or their friends.

    The committee explained that the value of the gift is immaterial since the Canon sets forth a principle which is not to be measured by monetary considerations.

    In Informal Opinion No. 900, the committee found that a judge may not accept a portrait to be hung in his courtroom from a group of attorneys who solicited funds for the painting of the portrait.

    However, the Advisory Committee on Judicial Activities in Advisory Opinion No. 47 held that Canon 5(C)(4) permitted a judge to accept complimentary memberships in professional and social clubs. Before accepting such a membership though, the judge was cautioned to ascertain that the club is not involved or likely to become involved in litigation in the federal court.

    The difference in treatment between the receipt of Christmas and other gifts and complimentary club memberships depends upon the donors. In the case of the gifts, the donors were either attorneys or litigants and as such, fell within the prohibition of Canon 5(C)(4)(c), whereas the clubs offering the memberships were not parties or attorneys likely to appear before the judge. Once the judge determines that the clubs are not likely to be federal court litigants, there is no appearance of partiality in the acceptance of the proffered memberships.

    The same restrictions do not apply to other court employees. In Informal Opinion No. 514, the Committee on Ethics and Professional Responsibility found that court clerks, court reporters and other court employees may accept gifts of nominal value from attorneys at Christmas time.

    In conclusion, it is the committee's opinion that the Code prohibits a judge from accepting Christmas gifts from attorneys or parties who are likely to appear before him or her, but that other court employees may accept Christmas gifts of a nominal value.