A judge cannot accept gifts. Nothing can hurt the integrity of a judicial office more than improper gifts.

I am an elected judge. Some close friends of mine and family members have given me gifts. Do I have to report them?

Samuel C. Stretton.

For many years, Pennsylvania Rules of Judicial Conduct did not include any prohibition about receiving gifts. In fact, for many years the only requirement was a rather loose reporting of the gifts. That, of course, changed with the adoption of the New Code of Judicial Conduct. Rule 3.13 of the Code of Judicial Conduct talks about acceptance of gifts, loans and other things of value. The rule is very clear that a judge cannot accept gifts.

"A judge shall not accept any gifts, loans, bequests, benefits or other things of value, if acceptance is prohibited by the law or would appear to a reasonable person to undermine the judge's independence, integrity or impartiality."

Under Rule 3.13(b), a judge can accept the following without publicly reporting them. First, a judge can accept items with little intrinsic value, such as plaques, certificates, trophies, birthday or greeting cards. A judge can also accept gifts, loans, bequests or benefits from friends, relatives, or other persons, including lawyers, whose appearance would require the judge's disqualification under Rule 2.11. A judge can receive ordinary gifts of social hospitality. A judge, obviously, can get monies from a lending institution if made in the regular course of business. A judge can receive rewards and prizes given to competitors or participants in contests or random drawings. But, of course, these events have to be open to all persons not just those who are judges. A judge can receive scholarships, fellowships and similar benefits if they are available to all persons. A judge can receive books, magazines and other resources supplied by publishers on a complementary basis for official use. A judge can receive gifts, awards or benefits associated with a business, profession or other separate activities of the spouse or domestic partner or another family member that resides in the judge's household and that incidentally benefit the judge. None of the above listed exceptions to the gift rule have to be publicly reported (Rule 3.13(b)). Of course, none of the above would be allowed if given to improperly influence the judge.

There are also provisions under Rule 3.13(c) about gifts incidental to a public testimonial or invitations to attend an event without charge that includes bar association activities. But these must be reported under Rule 3.15 and cannot be given for the purpose of influencing the judge. All the above must be reported if given by a lawyer who might appear before the judge.

Every judicial officer should review Rule 3.13 carefully. The best rule of thumb for a judge deciding whether to accept gifts is: did these persons who are now giving gifts ever offer gifts when the judge was a practicing lawyer? This writer has practiced law for 47 years and has never received a gift from another lawyer except for a Christmas fruit basket or a cookie basket for helping someone out. If a lawyer now becomes a judge and suddenly people are giving and offering gifts, it should be very clear why these gifts are being offered. There may be some friendship there, but they are being offered for a far more insidious purpose. A judge has to recognize sudden gift giving should not be accepted. Rule 3.13 emphasizes no gifts if given for the purpose of influencing. Years of not receiving gifts as a lawyer and now receiving gifts as a judge have only the purpose of influencing.

Also, gifts have to be reported under Rule 3.15 of the Code of Judicial Conduct. Gifts have to be reported unless the value of such items alone or in aggregate does not exceed $250.

The question then becomes what about friends and family members? The rule does allow gifts from family members and close friends because a close family member or a close friend or a lawyer who is a close friend can give gifts because the judge is going to have to disqualify him or herself anyway (See Rule 2.11). No judge can hear a case involving a family member or close friend. There would be a requirement of recusal. If the judge is not going to have to hear the case, then there is no issue of the judge being improperly influenced. Therefore, they can take the gift. But the gift has to be reported. The better practice still might be not to take the gift.

Even more important, the better practice is never to take gifts from lawyers who are one's friends. One never knows when the lawyer or someone in their firm or the lawyer's family member may be appearing before a judge, particularly in smaller counties.

The best practice of law is not to take any gifts. Even lawyers who are friends, it's better not to take gifts. Obviously, family members can give gifts, that is not an issue. But for anyone else, if one is a judicial officer, don't take gifts. That doesn't mean a lawyer who is a friend can't buy a judge lunch or dinner or something like that, because that fits within the exception of ordinary social hospitality.

Comment 2 to Code of Judicial conduct, Rule 3.13, states as follows: "Gift giving between friends and relatives is a common occurrence, and ordinarily does not create an appearance of impropriety or cause reasonable persons to believe that the judge's independence, integrity or impartiality has been compromised."

Therefore, the rule does not have restrictions upon the ability of a judge to accept gifts under those circumstances. But, again, they must be reported.

Obviously, campaign contributions to a judge's judicial campaign does not qualify as gifts under Rule 3.13. Those contributions are reported separately.

Nothing can hurt the integrity of a judicial office more than improper gifts. Rule 3.13 should be strictly complied with.

Family members of a judge should not accept gifts from anyone except from family, friends or coworkers.

Can member of a judge's family be given gifts?

The question is an interesting one, because the Rules of Judicial Conduct don't cover this subject. Gifts to a judge are prohibited by Code of Judicial Conduct, Rule 3.13. There are exceptions, but gifts are, in essence, prohibited by Rule 3.13 with certain exceptions such as friends or family members.

But, surprisingly, if one looks in the Code of Judicial Conduct there is no prohibition about someone giving gifts to a family member of a judge or maybe even a close friend of the judge. This omission should raise concern. What one can't do directly might well be accomplished indirectly with the same devastating impact on the judicial institution.

The Comment to Rule 3.13 discusses that situation. Comment 4 notes as follows: "Rule 3.13 applies only to acceptance of gifts or other things of value by a judge. Nevertheless, 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. The 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 members 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."

No prohibition of gifts to a judge's family member is a significant exception to Rule 3.13. The intent of not including gifts to a judge's family members is because the code does not want to restrict the life of family members and spouses. They should be able to live their own life. If they have close friends and business people give them gifts, then perhaps they should be allowed to do so. The concern is when someone has another purpose—of perhaps indirectly influencing the judge.

Lawyers who practice regularly should not be giving gifts to the judge's spouse or family members. If a judge suddenly starts to see their family members getting gifts, the reason for that occurring should be carefully reviewed. If they weren't giving such gifts when the judge was a lawyer, then there's only one reason to give gifts now and that is to improperly try to gain a benefit or influence.

Having said that, under Rule 3.15(b), it appears to be that these gifts might be required to be reported. Rule 3.15(b)(4) notes as follows: "Public reporting is required by Paragraph A, a judge shall report the date and source of any 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, who's interests have come or are likely to come before the judge."

Therefore, although a family member can accept the gift, the judge has the responsibility to report those gifts under Rule 3.15(B)(4).

Also, other aspects of the Code of Judicial Conduct would strongly suggest that gifts by family members should not be allowed. Under Rule 2.2, impartiality and fairness, a judge has to act fairly and impartially. Expensive gifts to family members could clearly undermine that. Under Rule 2.4, a judge cannot permit family, social or political interests to influence the judge's conduct.

The better practice for any judicial officer is to make very clear to family members that they are not to accept gifts from anyone except for their close family and friends or coworkers. They are not to accept gifts from lawyers or people who they don't have normal dealings with, but who may well be involved in the court system.

A judge has to be vigilant on these issues because one can undermine the judicial system if there is a question about the judge's fairness and it turns out family members received a substantial gift from a litigant or something of that nature.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.