May a county bar association give gifts to judges, and if so, what limits apply?

Plain-English summary

A county bar association asked whether it could give gifts to judges and, if so, what guidelines applied.

The committee said lawyers' gifts to judges are highly restricted and almost always improper. The generally applicable rules are Rule 3.5(a) and (d) and Rule 8.4(e). Rule 3.5(a) bars a lawyer from seeking to influence a judge by means prohibited by law, and Rule 3.5(d) limits when a lawyer may participate in a judicial portrait or memorial fund: an established bar association may solicit for such a fund only if donor anonymity is guaranteed, and no lawyer or judge may be identified in solicitation materials except the honoree and an officer of the soliciting entity. Rule 8.4(e) prohibits conduct prejudicial to the administration of justice, and a lawyer should not aid or abet judicial misconduct. The committee then considered the Code of Judicial Conduct: Canon 5(C)(4) generally bars a judge (or a family member in the household) from accepting a gift unless specifically permitted, with an exception for a gift incident to a public testimonial or an invitation to a bar-related function devoted to improving the law, the legal system, or the administration of justice; any gift, however small, representing a specialized interest, group, or individual who might appear before the judge is inappropriate (citing ABA Informal Op. 86-1516). The committee, relying on a South Carolina judicial-advisory opinion, said the public-testimonial exception contemplates an event given by the people generally and that judges should exercise the highest degree of conscientious discretion. It concluded a county bar may invite a judge to certain bar functions if the invitation is not intended and not likely to improperly influence the judge, that a properly conducted portrait solicitation is acceptable, but that testimonial gifts are problematic, both because not all county lawyers may be members so the testimonial may not be truly public, and because the appearance of an attempt to influence is likely, particularly for a gift of significant value, in which case the gift would not be proper.

Currency note

This opinion was issued in 1990, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a county bar give gifts to judges?

A: The committee said such gifts are highly restricted and almost always improper; only limited categories, such as bar-event invitations and properly conducted anonymous portrait or memorial funds, may be appropriate.

Q: Are judicial portrait or memorial fund drives permitted?

A: The committee said yes, if properly conducted: an established bar association may solicit only with guaranteed donor anonymity, and no lawyer or judge may be named in solicitation materials except the honoree and an officer of the soliciting entity (Rule 3.5(d)).

Q: Why are testimonial gifts treated as problematic?

A: The committee said a county-bar testimonial may not be truly "public" since not all county lawyers are members, and the appearance of an attempt to influence the judge is likely, especially for a gift of significant value, making such a gift improper.

Background and rules framework

The opinion applies Rule 3.5(a) and (d) (impartiality of the tribunal and judicial portrait/memorial funds) and Rule 8.4(e) (conduct prejudicial to the administration of justice), each corresponding to the like-numbered Model Rule, and reads them together with Canon 5(C)(4) of the Code of Judicial Conduct on a judge's acceptance of gifts.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 3.5(a) / Model Rule 3.5: a lawyer shall not seek to influence a judge by means prohibited by law.
• South Carolina RPC 3.5(d) / Model Rule 3.5: limits on participating in judicial portrait or memorial funds, requiring donor anonymity.
• South Carolina RPC 8.4(e) / Model Rule 8.4: conduct prejudicial to the administration of justice.

Other authorities:

• Canon 5(C)(4), Code of Judicial Conduct: limits a judge's acceptance of gifts, with a public-testimonial and bar-function exception.
• S.C. Advisory Committee on Standards of Judicial Conduct, Op. No. 7-1988, on the public-testimonial exception.

Other opinions cited:

• ABA Informal Op. 86-1516 (Jan. 1986): any gift representing a specialized interest, group, or individual who might appear before the judge is inappropriate.

See also

• SC Bar Ethics Op. 06-14: Donating to a Judge Memorial
• SC Bar Ethics Op. 15-02: Donut Friday Gifts
• SC Bar Ethics Op. 90-45: Judge's Son, PD Office

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-90-46/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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.