Can lawyers chip in to a gift fund for a judge, such as a vacation fund for a part-time pro tem judge?
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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
Several lawyers want to contribute to a "vacation fund" to be given to a semi-retired judge who still sits part-time on a pro tem basis. The opinion asks whether the lawyers may solicit funds for, or contribute to, such a fund.
The opinion concludes yes, qualified. Oregon RPC 3.5(a) bars a lawyer from seeking to influence a judge by means prohibited by law, and RPC 8.4(a)(6) makes it misconduct to knowingly assist a judge in conduct that violates the judicial conduct rules. Oregon Judicial Rule 3-103 limits the gifts a judge may accept, allowing, among other things, ordinary social hospitality and gifts on personal occasions, but barring gifts from a person whose interests are likely to come before the judge.
The opinion stresses that interpreting the Judicial Rules is the exclusive province of the Oregon Supreme Court, so it offers no opinion on whether funding a judge's vacation is "ordinary social hospitality." It notes there is a point at which a gift's value or nature falls outside that definition, quoting the ABA Model Code comment that an excessive gift can raise questions about the judge's impartiality and might require disqualification.
The opinion concludes that if the lawyers are not seeking to influence the judge and do not know the judge's acceptance would violate the Judicial Rules, soliciting and donating the funds does not violate Oregon RPC 3.5(a) or RPC 8.4(a)(5); what the lawyers intend is a question of fact in every case. It adds that lawyers should be mindful of the bribery statute, ORS 162.015(1).
In practice
The opinion holds that, under the Oregon rules as they stood at the time of the opinion, a lawyer's contribution to a judge's gift fund is not by itself improper, but turns on the lawyer's intent and knowledge: the conduct is permissible only if the lawyer is not trying to influence the judge and does not know acceptance would break the Judicial Rules, and lawyers remain subject to the bribery statute. Because the permissibility of the gift to the judge depends on the Judicial Rules, which only the Oregon Supreme Court construes, verify current rules before relying on any specific point.
Common questions
Q: Can a group of lawyers give a judge a gift, like a vacation fund?
A: Yes, qualified. The opinion concludes lawyers may solicit and contribute to such a fund if they are not seeking to influence the judge and do not know the judge's acceptance would violate the Judicial Rules.
Q: What makes contributing to a judge's gift improper for a lawyer?
A: The opinion concludes it is improper if the lawyer seeks to influence the judge (Oregon RPC 3.5(a)) or knowingly assists the judge in violating the Judicial Rules (RPC 8.4(a)(6)); the bribery statute also applies.
Q: Does the opinion say whether a vacation fund is an allowed gift to the judge?
A: No. The opinion declines to opine on whether the fund is "ordinary social hospitality" under Judicial Rule 3-103, because interpreting the Judicial Rules is exclusively for the Oregon Supreme Court.
Background and rules framework
The opinion interprets Oregon RPC 3.5(a) (improper influence on a judge) and RPC 8.4(a)(5) and (a)(6) (conduct prejudicial to the administration of justice and knowingly assisting a judge's violation), corresponding to Model Rules 3.5 and 8.4. It also references Oregon Judicial Rule 3-103 (gifts a judge may accept) and the bribery statute ORS 162.015(1), while noting that the Judicial Rules themselves are construed only by the Oregon Supreme Court.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 3.5(a) / Model Rule 3.5 (improper influence on judges)
- Oregon RPC 8.4(a)(5), (a)(6) / Model Rule 8.4 (administration of justice; assisting judicial violations)
Statutes:
- ORS 162.015(1) (bribe giving)
Other authority:
- Oregon Judicial Rule 3-103 (gifts a judge may accept)
- ABA Model Code of Judicial Conduct, Canon 4D(5)(d) comment
See also
- OSB Ethics Op. 2005-39: A Lawyer Serving as a Pro Tem Judge
- OSB Ethics Op. 2005-36: A Lawyer Campaigning for Judicial Office
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-56.pdf
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