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Drawing the line on gifts

By: JESSICA STEPHEN//May 27, 2015

Drawing the line on gifts

By: JESSICA STEPHEN//May 27, 2015


The Wisconsin Supreme Court sets the rules governing when and how judges can accept gifts.

Still, Justice Shirley Abrahamson is widely known for setting the standard.

“She won’t take a cup of coffee. Even as a friend, you can’t buy her a cup of coffee,” says Janine Geske, who once served on the state’s high court alongside Abrahamson.

Geske said Abrahamson goes for a literal interpretation of a sometimes ambiguous rule. Chapter 60 of the Wisconsin Supreme Court rules state that judges may not accept a gift, favor or loan, and define a gift as being “anything of value.”

There are exceptions, of course.

According to the rule, for instance, judges are allowed to accept “ordinary social hospitality.” They may also accept gifts from relatives. And, in appropriate circumstances — say at a wedding, anniversary or birthday — they can accept gifts from friends, as long as those gifts are “fairly commensurate with the occasion and the relationship.”

All those complications, Geske said, probably go far toward explaining why Abrahamson favors a strict interpretation.

“In some ways, if you draw the line tight, it’s clear.”

Meanwhile, it’s not just judges who struggle with how and when to decline gifts.

“I think lawyers in Wisconsin are pretty sensitive to the issue, which is a good thing,” said Dean Dietrich, who is the past chairman of the Wisconsin State Bar Professional Ethics Committee and a shareholder at Ruder Ware in Wausau, where he has led the firm’s professional responsibility and ethics practice for more than 15 years.

“I hope we’re not so sensitive that we’ve created this broad net of judicial isolation, which, I think, makes the judges’ jobs unattractive. It’s very hard to find a balance.”

Some think things have been pushed a bit far.

“There is a phenomenon of judicial isolation,” argued Ben Kempinen, clinical professor of ethical issues in criminal justice at the University of Wisconsin Law School and a member of the Wisconsin Supreme Court Ethics 2000 Committee.

“Sometimes, it goes beyond gifts; it’s relationships,” Kempinen said. “Lawyers often do things together professionally, even socially. When you leave that part of the legal culture and become a judge, certainly you still have your friends and relationships, but there’s a difference.

“You can’t talk casually with a lawyer about a case. Judges can’t risk being seen talking to a lawyer in the hallway. They might be talking about if their daughters are going to make the soccer team. But what if another lawyers sees? Some judges find it very isolating.”

And while maintaining a certain distance is often an expected part of a judge’s job, Geske said, that doesn’t make it any easier.

“I think the hardest part of it is you don’t want to hurt people’s feelings,” said Geske, who spent years worrying that her strict adherence to the rules left others feeling cold.

Finally, she had to let it go.

“By the time I got to the Supreme Court, I was really clear: ‘I can’t accept anything.’”

And, yet, even attorneys struggle with defining the limits.

It’s fairly obvious you shouldn’t give a judge a set of golf clubs, but what about baby gifts from former colleagues? Theater tickets from a long-time friend? What if that friend is a lawyer?

“There are those sort of dilemmas that keep coming up, drawing those lines on what is acceptable,” Geske said.

And it doesn’t end with judges.

Because judges are instructed to “avoid the appearance of impropriety,” some worry that even gifts to their staff members are off limits.

For Dietrich, dropping off cookies at Christmas time or sending over a bag of coffee to say “thanks” is acceptable.

Still, “giving that to a judge, it just wouldn’t feel right, even though I know the judge would give it to the court staff. It’s just a different set of rules,” he said.

Or is it?

“It’s gotten so much more difficult with the divisiveness in politics,” Geske said. “There is so much questioning of motives. It’s become a problem.”

Which is why Geske said she and other judges won’t even accept gifts for staff, choosing instead to take holiday cookies and those well-intended bags of coffee to a local shelter.

“Even that can have its own set of problems,” Geske said. “If you don’t explain it to the owner, and he or she thinks they’re buying influence, you really haven’t gotten rid of the problem. So, it’s a nice gesture. But, on the other hand, it crosses some lines.”

Despite the prying eye of those who might be eager to discover nefarious motives at every turn, Dietrich said, common sense can prevail, particularly if gift-givers and receivers alike remember the spirit of the Supreme Court rule.

“The rules both preventing judges from accepting gifts and preventing lawyers from suggesting to their clients that they can unduly influence a judge are extremely important,” Dietrich said. “They exist to ensure the absolute integrity of our judicial system. … What we’ve lost sight of, in many instances, but is critical to what we’re talking about, are two concepts. The first is, unfortunately, perception is more real than reality, and appearances of conflicts or appearances of special favors or special influences are as damaging if not more damaging than deliberate attempts to use special favors.”

The second, Dietrich said, is “in 98 percent of cases, it’s not done with any intention to influence. The person offering to buy a drink for a judge is no different than offering to buy a drink for someone in your firm or a friend. It’s part of the natural exchange. It’s nice to do for someone.”

And yet, Geske said, it’s a judge’s obligation to decline, even if they appreciate the offer.

“Regardless of the intentions, there can be an appearance of impropriety. And judges have become more sensitive to that. It has isolated judges.”

But, Geske said, “The rule is clear: You can’t give anything to the court. You can’t buy anything for the judge. It’s a good thing. And, I think, it’s a good topic to talk about. There are lots of new judges, and there are new lawyers all the time. And the experiences of the past are forgotten. It’s good to remind people that judges and lawyers have these ethical responsibilities.”


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