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Opinion 173

The Judicial Qualifications Commission has been asked for an opinion as to the propriety of an Administrative Law Judge accepting a gift of $2500 from a close personal friend who is an executive with a large publicly held company which, on occasion, is involved in proceedings before the judge. The proposed donor owns less than one-hundredth of one percent of the company’s stock, and like other qualified employees, has a retirement program with the company.

Notwithstanding the obvious fact that the proposed gift is extended in utmost good faith without any purpose of attempting to influence the judge in any way, the Commission nevertheless is constrained to hold that acceptance of such a substantial gift would offend the Code of Judicial Conduct.

In a somewhat analogous situation, the Commission noted in Opinion No. 13 that “the fundamental principle relating to the conduct of judges is stated in the title to Canon 1 to the effect that ‘Judges Should Avoid Impropriety and the Appearance of Impropriety in All Their Activities.'”

In connection with this subject, Commentary [2] states:

… Judges must expect to be the subject of constant public scrutiny. Judges must therefore accept restrictions on their conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

With these provisions in mind, we turn to Rule 3.13(A) which deals in a general way with the subject of gifts, bequests, favors, and loans to a judge. The basic rule stated in the paragraph plainly prohibits a judge from accepting a substantial gift from anyone. Three (3) exceptions then follow, only one of which might possibly be applicable here. Rule 3.13(C) provides:

. . . judges . . . may accept any other gift . . . only if the donor is not A party or other person (emphasis added) whose interests have come or are likely to come before them, and if its value exceeds $100, the judges report it in the same manner as they report compensation in Rule 3.15.

In the question posed, the gift is clearly substantial but the proposed donor is not a party whose interests have come or are likely to come before the judge. He is, however, an executive with and a very minor stockholder in a publicly held company which has on occasion come before the judge as a party and whose interests are likely to continue to come before the judge.

While the judge could obviously recuse himself in any future matters involving the employer company, the totality of the circumstances here presented could lead to at least the appearance of impropriety. For this reason and with all due respect for the views of the requesting judge, such conduct cannot be sanctioned.

Accordingly, it is the opinion of this Commission that the acceptance of the proposed gift under the circumstances here presented would be inappropriate and in violation of Canon 3.

[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(B), 3.13(C), 3.15 . Cross reference to other relevant opinions for review: #13, #50, #66, #94, #96, #113.]

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