UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-46
May a county bar give gifts to judges? If so, are there guidelines which apply?
Summary:
Invitations to certain bar-related events and properly conducted portrait fund drives may be appropriate under ethical rules for lawyers and judges. However, other gifts, such as those given in connection with a testimonial, are likely to be deemed inappropriate, given the high probability that they will be perceived as attempts to influence the judge.
Opinion:
Lawyer's gifts to judges are highly restricted and are almost always improper. The generally applicable sections of the South Carolina Rules of Professional Conduct are Rules 3.5 (a) and (d) and 8.4 (e). Rule 3.5 (a) prohibits lawyers from seeking "to influence a judge by means prohibited by law." Rule 3.5 (d) expressly limits the situations in which a lawyer may participate in a judicial portrait or memorial fund. An established bar association may solicit for a judicial portrait fund or a memorial, but only if the anonymity of donors is guaranteed. Also, no lawyer or judge may be identified in any solicitation materials except for the honoree and an officer of the soliciting entity. Rule 8.4 (e) prohibits conduct prejudicial to the administration of justice.
A lawyer also should not aid or abet judicial misconduct.
Therefore, it is appropriate to consider any limitations imposed by the Code of Judicial Conduct upon the acceptance of gifts by a judge. Canon 5 (c) (4) generally prohibits the acceptance by a judge (or by any member of the judge's family resident in the same household) of a gift or favor from anyone unless specifically permitted. One relevant exception does permit a judge to accept a gift incident to a public testimonial 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." Any gift, no matter, how small, which represent a specialized interest, group, or individual, who might appear before the recipient judge, is inappropriate. See ABA Inf. Op. 86-1516 (Jan. 1986). An advisory opinion issued by the S.C. Advisory Committee on Standards of Judicial Conduct suggests that the exception for public testimonials contemplates an "event given by the people generally, expressive of their appreciation or esteem toward the individual being honored. The advisory committee recommended that judges "exercise the highest degree of conscientious discretion" in separating permissible gifts pursuant to a public testimonial from impermissible gifts by private interest. S.C. Adv. Committee on Standards of Jud. Cond. Op. No. 7-1988.
A county bar, therefore, may be able to invite a judge to certain types of bar functions if the invitation is not intended to influence the judge improperly and if there is little or no likelihood of any such impropriety. A properly conducted judicial portrait solicitation also is acceptable. Testimonial gifts, however, are more problematic. Given that not all lawyers in a county may be members of the county bar association, there is some question whether the testimonial is truly public as interpreted in the judicial advisory opinion. Also, given the realities of solicitation for such a gift, the appearance of an attempt to influence the judge or to prejudice the administration of justice is likely, particularly if the gift is of any significant value. In such cases, the gift would not be proper.