Happy holidays to all – here’s wishing everyone a joyous and peaceful end of 2018. At this time of year many of us want to give back to others in our lives, be they family, friends, or professional relations. In the courts we often receive expressions of appreciation, often from well-meaning attorneys who practice in our jurisdictions. This may be as simple as a nice holiday card, or more elaborate like a floral arrangement, a large food item, or something more grandiose. It certainly is wonderful to receive such expressions of appreciation, yet judges and court staff must be careful to adhere to applicable codes of conduct and their ethical constraints in accepting such gifts. But first, let me relate a situation I was faced with early in my career to demonstrate that this is a real issue.
It’s the week before Christmas, and I get called to the courthouse lobby outside of the public intake counter. When I arrive, standing there is a prominent local attorney with a small, decorated evergreen tree and a big box of expensive chocolates to be given to my office. Right next to him is a news reporter and camera crew from a local TV station to cover the “event.” What makes this situation memorable? A new court policy that bans all gifts to any judge or employee went into effect the year before, and this attorney has been making a big fuss about not being able to give gifts to court staff ever since and vowed to go ahead and do so during the holiday season. The attorney offers the gifts to me, I refuse and cite the gift policy, the attorney loudly proclaims the short-sightedness of the policy and how I was being rather idiotic, then turns and leaves. Of course, the whole scene plays out on the evening news.
Wait – how could the acceptance of such gifts be a problem? Using the NACM Model Code of Conduct ( https://nacmnet.org/resources/education/ethics/), here are the ethical issues:
- Canon 1 – Avoiding impropriety or the appearance of impropriety in the performance of duties. Accepting a gift can appear to be exerting undue influence on the impartial performance of duties, potentially leading to the improper exercise of privilege towards the giver.
- Canon 2 — Performing the duties of the position impartially and diligently. Gift-giving can be seen as part of a special relationship between the giver and the employee, again with an appearance of favoritism.
- Canon 3.3 — A court professional does not solicit, accept, agree to accept, or dispense any gift, favor, or loan either for oneself or on behalf of another, when such an act is based upon any understanding, either explicit or implicit, that would influence an official action of the court.
Depending on one’s jurisdiction, the applicable Code of Conduct may differ somewhat, but the core ethical issues remain essentially the same. Many jurisdictions have supplemental guidance to help judges and staff make sound ethical gift-acceptance decisions. In the U.S. federal courts the “Guide to Judiciary Policies and Procedures Ethics and Judicial Conduct” has a special subsection on “Gifts” (http://www.uscourts.gov/rules-policies/judiciary-policies/code-conduct/judicial-conference-regulations-gifts). In addition, a booklet entitled “Getting it Right” has been published which discusses common ethical issues, including accepting gifts.
So, are ALL holiday gifts described above improper? That depends on your local Code of Conduct and policies. Some courts ban all gifts; many others define circumstances where some gifts may be accepted. For instance, here is the policy of the U.S. federal courts (Sec. 620.25 of the Guide):
“Gift” means any gratuity, favor, discount, entertainment, hospitality, loan, forebearance, or other similar item having monetary value but does not include: a) social hospitality based on personal relationships; b) modest items, such as food and refreshments, offered as a matter of social hospitality; c) greeting cards and items with little intrinsic value…”
As an example, in the federal courts I worked in we gave this guidance to staff regarding holiday gifts with a reminder each November:
- Gifts given to a specific employee were unacceptable.
- Gifts with a value of under $50.00 given to, and shared by, the entire staff (not just one section or judicial chambers) were acceptable.
- If there is any question that the intention of the giver is something other than thanks and the holiday spirit, do not accept the gift.
- When in doubt, consult with management or simply refuse the gift (thanking the giver for the sentiment, and citing the court policy).
Again, local jurisdictions may have different policies. What is important, however, is we be diligent to adhere to our ethical obligations and not allow the holiday spirit of giving to compromise our integrity. Training of staff on ethical issues like these is vitally important. As a final note, there is a great holiday gifts related video training module, “Gifts Gifts Gifts,” available on the NACM website at http://icmelearning.com/nacm/ethics-lessons/GiftsGiftsGifts/ethics-gifts/, and I encourage its use.
As always, comments are welcome. In particular, if you have an interesting story about a holiday season gift ethics issue you have dealt with, I’d love to hear about it. Meanwhile, I wish everyone a wonderful holiday season full of joy and happiness!
Anyone interested in copies of the U.S. federal court materials is welcome to contact me.