Opinion #129. Lawyers Raising Funds for Judicial Education Committee On Behalf of Maine Bar Foundation

Issued by the Professional Ethics Commission

Date Issued: December 31, 1992

Question

The Maine Bar Foundation has established a Judicial Education Committee for the purpose of raising funds from the private sector to enable the Maine Bar Foundation to make an annual grant to the Judicial Department for judicial education. The Chairman of the Judicial Education Committee has requested an advisory opinion under Rule 11(c)(2) of the Maine Bar Rules as to whether there is any ethical problem for lawyers who participate in this fundraising effort.

The Maine Bar Foundation proposes to solicit funds from private foundations, charitable trusts, business concerns, lawyers and others in order to make an annual grant to the Judicial Department of the State of Maine for judicial education. The goal for the first year is $45,000. The funds would be used to defray the expense of providing and attending programs of judicial education for the members of Maine’s judiciary, such programs to be primarily in‑state but not necessarily so restricted. The time, place and content of the programs would be determined and governed by a committee of the judiciary with the sole requirement imposed by the Foundation being that some portion of the program be devoted to poverty law. No member of the judiciary will participate in any way in the solicitation of funds. The solicitation will be directed and performed by the Maine Bar Foundation Judicial Education Committee, the members of which include practicing lawyers along with community and business leaders. It is anticipated that the funds will be made available by the Maine Bar Foundation to the Judicial Department as a single grant for a one‑year period.

There will be no publication or public acknowledgment of contributions to the judicial education fund of the Maine Bar Foundation, nor will the Maine Bar Foundation or its Judicial Education Committee inform the Judicial Department of the identity of the donors. All donors will be so advised.

The questions presented are whether under the Code of Professional Responsibility, members of the Maine Bar are subject to any restrictions in (1) participating in the work of the Maine Bar Foundation Judicial Education Committee; (2) soliciting funds for the Maine Bar Foundation Judicial Education project from other lawyers or from business concerns, private foundations, etc.; or (3) contributing to the Maine Bar Foundation Judicial Education fund.

Opinion

It is the opinion of the Commission that lawyers are prohibited by Rule 3.7(h)(1) of the Maine Bar Rules (1) from making contributions to the Maine Bar Foundation Judicial Education Fund (the “Fund”) under the circumstances described in this inquiry, and (2) from soliciting contributions from other lawyers or from other persons, business concerns, private foundations, etc. for the Fund under the circumstances described in this inquiry. More specifically, the Commission is of the opinion that under the circumstances described in this inquiry, lawyers contributing to the Fund would be “indirectly” making contributions to judges within the meaning and prohibition of Rule 3.7(h)(1).

Rule 3.7(h)(1) of the Maine Bar Rules[1] provides as follows:

A lawyer shall not directly or indirectly give or lend anything of value to a judge, official, or employee of a tribunal unless the personal or family relationship between the lawyer and the judge, official, or employee is such that such gifts are customarily given and exchanged. This paragraph does not preclude contributions to election campaigns of public officers.
  1. The prohibition of Rule 3.7(h)(1) extends to gifts that are made “indirectly” to judges.

On its face, Rule 3.7(h)(1) prohibits lawyers from “indirectly” as well as “directly” giving anything of value to a judge, except as permitted by that Rule. Under the proposal described in this inquiry, lawyers would not be directly giving anything of value to judges. All contributions would be made to the Fund, and the Maine Bar Foundation would make an annual grant from the Fund to the Judicial Department and not to the individual judges. Although contributions to the Fund do not constitute “direct” gifts to judges, they nonetheless indirectly ultimately accrue to the benefit of judges through the conduits of the Maine Bar Foundation and the Judicial Department. Given the broad sweep of Rule 3.7(h)(1), which expressly extends to “indirect” as well as “direct” gifts to judges, the Commission concludes that contributions by lawyers to the Fund would be prohibited by that Rule.

  1. The prohibition of Rule 3.7(h)(1) applies even though contributions are not made for the purposes of influencing, or are not likely to influence, the judgment of a tribunal.

Although it could be argued that Rule 3.7(h)(1) should be construed so as to prohibit only such gifts that are made for the purpose of influencing, or are likely to influence, the judgment of a tribunal, neither the language of that Rule nor its history supports such a construction.

On its face, Rule 3.7(h)(1) contains no language that limits its ban only to such gifts that are made with improper motive or that might adversely affect the administration of justice.[2]

Nor does the history of Rule 3.7(h)(1) suggest that the extent of its prohibition should be limited in that respect. Rule 3.7(h)(1) was derived from DR 7‑110(A) of the A.B.A. Model Code of Professional Responsibility. See Reporter’s Notes to Rule 3.7(h). As originally adopted by the American Bar Association as part of the Model Code on August 12, 1969, effective January 1, 1970, DR 7‑110(A) provided as follows:

A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal.

Prior to its adoption in that form, the preliminary draft of DR 7‑110(A) ended with the following limiting clause: “if the gift or loan is for the purpose of influencing, or is likely to influence, his judgment or obtaining some benefit for the lawyer or the lawyer’s client.” That clause, however, was omitted from the final draft of DR 7‑110(A). See A.B.A. Annotated Code of Professional Responsibility (1979) at 375. The omission of that limiting clause indicates that the prohibition of DR 7‑110(A), as originally adopted, extended to gifts from lawyers to judges, regardless of motive or tendency to influence a tribunal, subject only to such exceptions as are contained within that Disciplinary Rule itself. See also In re Corboy, 528 N.E.2d 694, 698 (Ill. 1988) (eleemosynary motives are irrelevant under Illinois’ version of DR 7‑110(A)).

Like DR 7‑110(A), Rule 3.7(h)(1) contains no language that would allow gifts from lawyers to judges provided such gifts are not intended to, or are not likely to, influence a tribunal. Indeed, if anything, the prohibition of Rule 3.7(h)(1) is broader than that of DR 7‑110(A) because the former, unlike the latter, expressly extends to gifts that are made “indirectly” as well as to gifts that are made “directly.”

In light of the broad scope of the prohibition of Rule 3.7(h)(1), it is immaterial that provision is made for assuring the anonymity of contributions to the Fund as described in this inquiry. Consequently, the Commission does not address the question of whether such anonymity could indeed be assured as a matter of fact.

  1. Rule 3.7(h)(1) prohibits lawyer contributions to the Fund notwithstanding the 1974 amendment of DR 7‑110(A).

Subsequent to its adoption by the American Bar Association, DR 7‑110 (A) was amended in February, 1974 in two respects in order to bring that Disciplinary Rule into conformity with the then‑new Code of Judicial Conduct.[3]

That 1974 amendment added two exceptions to the prohibition of DR 7‑110(A). One of those exceptions permitted lawyers to make gifts to judges “as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct.” The other exception added by that amendment permitted lawyers to make contributions “to the campaign fund of a candidate for judicial office in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.” As thus amended, DR 7‑110(A) provided as follows (amending language underlined):

A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with Section B(2) under Canon 7 of the Code of Judicial Conduct.

See A.B.A. Annotated Code of Professional Responsibility (1979) at 375. Section C(4) of Canon 5 of the Maine Code of Judicial Conduct permits judges to accept certain “gifts,” including “an invitation to the judge and his spouse to attend a bar‑related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.” Section C(4)(a) of Canon 5, Maine Code of Judicial Conduct.

Although the Reporter’s Notes to Rule 3.7(h) state that Rule 3.7(h) is a “restatement of DR 7‑110” and that “[n]o substantive change is intended,” Rule 3.7(h)(1) as adopted by the Supreme Judicial Court, by Order dated May 1, 1979, effective May 15, 1979, did not include the exception, “except as permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct,” which had been added to DR 7‑110(A) by the above‑referenced February, 1974 amendment to that Disciplinary Rule. Rather, the drafters of Rule 3.7(h) (1) incorporated therein a novel exception permitting gifts from lawyers where “the personal or family relationship between the lawyer and the judge, official or employee is such that gifts are customarily given and exchanged.” Under these circumstances, notwithstanding the Reporter’s Notes to Rule 3.7(h), it is evident that Rule 3.7(h)(1), as it was originally adopted and still reads, differs significantly from DR 7‑110(A), as that Disciplinary Rule read at the time when Rule 3.7(h)(1) was adopted. Specifically, unlike DR 7‑110(A) which was amended in February, 1974 to bring that Disciplinary Rule into conformity with the Code of Judicial Conduct, Rule 3.7(h)(1) contains no such conforming provision.[4]

Had the drafters of Rule 3.7(h)(1) incorporated an exception to that Rule in order to bring it into conformity with the Code of Judicial Conduct, in a manner consistent with the February, 1974 amendment to DR 7‑110(A), by incorporating the provisions of Section C(4) of Canon 5 of the Code of Judicial Conduct, Rule 3.7(h)(1) would permit lawyers to make “gifts” to judges under certain circumstances, including “an invitation to the judge and his spouse to attend a bar‑related function or activity devoted to the improvement of the law, the legal system, or the administration of justice.” See Section C(4)(a) of Canon 5 of the Maine Code of Judicial Conduct. Since, however, Rule 3.7(h)(1) does not incorporate Section C(4) of Canon 5 of the Code of Judicial Conduct, the circumstances under which contributions by lawyers to the Fund would be permitted under such a conforming provision, like the conforming provision of DR 7‑110(A) as amended, are beyond the scope of the present inquiry.[5]

In sum, for the reasons stated above, the Commission is of the opinion that the prohibition of Rule 3.7(h)(1) is so broadly framed that it prohibits lawyers from making contributions to the Fund under the circumstances described in this inquiry. Although the proposal to solicit contributions to fund judicial education might promote improvement in the administration of justice, the Commission is also mindful of the significant policy objective of Rule 3.7(h)(1), viz., the preservation of an independent and impartial judiciary. See In re Corboy, 528 N.E.2d 694, 697 (Ill. 1988). Given the plain language of Rule 3.7(h)(1), its legislative history, and the important policy objective of that Rule, the Commission is not inclined to construe that Rule to carve out an exception to permit indirect lawyer contributions to the judiciary in the manner described in this inquiry.

Consistent with the foregoing, the Commission further concludes that lawyers should refrain from soliciting contributions to the Fund from other lawyers or from other persons, business concerns, private foundations, etc. under the circumstances described in this inquiry. See Rule 3.2(f)(1) of the Maine Bar Rules (prohibiting indirect violation of any provision of the Maine Bar Rules, including Rule 3.7(h)(1)).

Finally, the Commission is unable definitively to answer the remaining question as to whether, apart from engaging in soliciting activities, lawyers are prohibited from otherwise “participating in” the work of the Maine Bar Foundation Judicial Education Committee since this inquiry does not specify the nature of the activities that would constitute such “participation.”[6]


Footnotes

[1] Rule 3.7(h)(1) of the Maine Bar Rules has not been amended since it was adopted by the Supreme Judicial Court as part of the Code of Professional Responsibility by Order dated May 1, 1979, effective May 15, 1979.

[2] In contrast with Rule 3‑7(h)(1), the A.B.A. Model Rules of Professional Conduct adopt the arguably less restrictive approach that the propriety of gifts from lawyers to judges should be measured by the standards of unlawful influence (Model Rule 3.5(a)), conduct prejudicial to the administration of justice (Model Rule 8.4(d)), and knowing assistance of a judge in conduct violative of rules of judicial conduct or other law (Model Rule 8.4(f)).

[3] The A.B.A. Code of Judicial Conduct was adopted by the American Bar Association on August 16, 1972.

[4] We are unable to assume that this was an oversight on the part of the drafters of Rule 3.7(h)(1) inasmuch as the Supreme Judicial Court had previously adopted the Code of Judicial Conduct by Order dated February 26, 1974, effective April 1, 1974, and DR 7‑110(A) had been amended in 1974 to bring that Disciplinary Rule into conformity with the A.B.A. Code of Judicial Conduct.

[5] In the case of In re Corboy, 528 N.E.2d 694 (Ill. 1988), the Supreme Court of Illinois read into the Illinois version of DR 7‑110(A) a provision that would conform that Rule with the Illinois Code of Judicial Conduct, observing that “it would not be reasonable to hold that a judge may accept something from a lawyer which the lawyer is not permitted to give . . . .” Id. at 699. The Court’s judgment in that case expressly amended the Illinois version of DR 7‑110(A) to bring it into conformity with the Illinois Code of Judicial Conduct. Id. at 701. Unlike the Supreme Court of Illinois, however, the Commission is not empowered to amend the Maine Bar Rules, even if it were persuaded that the omission of an exception in Rule 3.7(h)(1) to conform that Rule with the Code of Judicial Conduct was an oversight on the part of the drafters of that Rule.

[6] The authority of the Commission is limited to providing advisory opinions involving interpretation and application of the Code of Professional Responsibility (Rule 3). See Maine Bar Rule 11(c)(1) and (2). That being the case, the Commission expresses no opinion as to the application of the general law or the Code of Judicial Conduct to the activities described in the present inquiry.


Enduring Ethics Opinion