How do judicial ethics gift rules impact disaster relief for judges?

The scope of the Los Angeles fires is vast, and the loss of life and property is difficult to comprehend. Most lawyers in Southern California know someone who was affected by this tragedy. In the court family, we have sadly learned of many judicial colleagues who lost their homes. As these judges and their loved ones struggle to put their lives back together, will the California Code of Judicial Conduct, Canon 4D limit the aid and financial assistance they can accept?

Judges are prohibited from receiving gifts, bequests, favors, or loans unless they fall under narrow exceptions. (See Canons 4D(5) & (6)(a)-(i).) Commonly accepted gifts are those from persons whose preexisting relationship with a judge would prevent the judge from hearing their case. (Canon 4D(6)(a).) For example, a judge would be disqualified from hearing a case involving their parent, sibling, neighbor, or close friend and therefore can ethically accept gifts from them.

Other common permissible gifts (although not usually thought of in those terms) are any "commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same terms to similarly situated persons who are not judges." (Canon 4D(6)(c).)

Guidance is provided in Rothman, et al., California Judicial Conduct Handbook, section 9.47 (4th Ed. 2017). For example, a judge may take advantage of a discount for services that is made available to all state employees, or a discount for products that is made available to all employees of the court in the normal course of business. If attending a judicial conference, a judge may accept a room rate discount from the hotel when the hotel offers similar discounts to other groups that hold conferences there. A bank loan can be accepted by a judge under the same terms available to non-judicial customers in the regular course of business.

By contrast, clearly prohibited gifts are those from attorneys and parties whose interests may come before the judge, gifts for a special occasion, such as a wedding, that are not commensurate with the occasion or the relationship, or gifts outside the scope of ordinary social hospitality. (Canon 4D(5) &(6)(b)(g)).

Under these guidelines, certain types of disaster help are certainly permissible. A judge may take advantage of assistance from disaster aid centers set up for all fire victims by the Red Cross, community donations for victims, FireAid help, or fire relief pop-ups sponsored by commercial vendors. Acceptance of any governmental aid, tax credits, loans or other relief is allowed as it is not limited to judges. Discounts offered by stores to fire victims are fine. Direct donations to a judge from family members, judicial colleagues, and close friends can be received because the judge's preexisting relationship would bar the judge from hearing their case.

Other forms of assistance are barred. Judges cannot accept funds from attorney donations designed to directly assist judges, nor can they benefit from GoFundMe sites set up for members of the public to donate to individual judges. Proceeds from a fundraiser conducted by a judge's house of worship for the judge's benefit cannot be received. Those wanting to help should expand their focus to a larger group of victims.

By contrast, if a local bar association set up a fund drive and made the proceeds available to any member of the legal community who lost a home, a judge should be able to accept such assistance as it is available to non-judges too. If a close friend set up a fundraiser for a judge limited to donations from other close friends who could not appear before the judge due to their preexisting relationship, that activity complies with the ethics rules.

As disaster relief efforts continue to evolve, it will soon become clear whether judges are being precluded from assistance that others are receiving. If the Canons are standing in the way, the California Supreme Court, which makes the rules for the conduct of judges, could suspend some portion of the gift rules for a limited time due to the extraordinary disaster. It is not clear whether such action will be necessary considering the many permissible methods of relief.