Opinion No. 95-7

April 18, 1995

TOPIC: Judge accepting complimentary subscription to legal resource materials on CD-ROM.

DIGEST: A judge may accept, for official use, a complimentary subscription to state statutes and appellate and supreme court opinions contained on CD-ROM from a publishing company.

REFERENCES: Illinois Supreme Court Rule 65C(4) of the Code of Judicial Conduct, Canon 5 (145 Ill.2d R.65); Illinois Supreme Court Rule 63A(1) of the Code of Judicial Conduct, Canon 3 (145 Ill.2d R.63); Illinois Supreme Court Rule 68 (145 Ill.2d R.68); ABA Model Code of Judicial Conduct (1972), Canon 5C(4)(a); ABA Model Code of Judicial Conduct (1990), Canon 4D(5)(a); Thode, Reporter's Notes to Code of Judicial Conduct, p. 84 (1973); Shaman, Lubet and Alfini, Judicial Conduct and Ethics, section 7.28, p. 201 (1990); Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, p. 17 (Am. Judicature Soc. 1984).

FACTS

A law publishing company offers to provide a judge with a free subscription to the Illinois Compiled Statutes and opinions of the appellate and supreme courts on CD-ROM (compact disk, read only memory). The value of the subscription is $45.00 per month. The judge will use the resource materials only in his capacity as a judge for official purposes.

QUESTION

May a judge accept a complimentary subscription to legal resource materials on CD-ROM from a publishing company?

OPINION

Illinois Supreme Court Rule 65C(4) governs the acceptance of gifts by judges. In pertinent part, Rule 65C(4) provides:

(4) Neither a judge nor a member of the judge's family residing in the judge's household should accept a gift, bequest, favor or loan from anyone except as follows:

(a) a judge may accept a gift incident

to a public testimonial to the judge;

books supplied by publishers on a complimentary

basis for official use; ... (emphasis added)

Since Rule 65C(4)(a) permits a judge to accept "books" from publishers on a complimentary basis, the issue becomes whether the term "books" is broad enough to include legal resource material contained on CD-ROM. The Committee believes that the term "books" should be interpreted to include legal materials on CD-ROM.

The provisions of Rule 65C(4) cited above are identical to, and drawn from, Canon 5C(4)(a) of the American Bar Association Model Code of Judicial Conduct of 1972. The 1990 ABA Model Code of Judicial Conduct slightly modifies the 1972 provisions regarding the types of materials a judge can receive from a publishing company by permitting judges to accept not only "books, " but also "tapes, and other resource materials supplied by publishers on a complimentary basis for official use" (emphasis added). See 1990 ABA Model Code of Judicial Conduct, Canon 4D(5)(a). The 1990 amendment would clearly permit judges to accept state statutes and appellate and supreme court opinions on CD-ROM. While the Illinois Rule has not been amended to reflect the revised language of ABA Canon 4D(5)(a), the Committee believes that the revised language does not create a new standard, but merely clarifies the types of material a judge can accept under Canon 5C(4)(a) of the 1972 ABA Model Code. "Books", in the Committee's opinion, was not meant to be a restrictive term prohibiting a judge from accepting legal resource materials in any other form. "Books", simply, were the primary form in which legal resource materials were available in 1972. In addition, a restrictive interpretation of the word "books" would not further the purposes of Rule 65C(4)(a). The purpose of the rules concerning gifts, including gifts of "books", is to "strike a balance between common sense and usage, and apparent or actual impropriety," Shaman, Lubet and Alfini, Judicial Conduct and Ethics, section 7.28, p. 201 (1990), and to avoid conduct which exploits the judicial position or causes frequent disqualification, Lubet, Beyond Reproach: Ethical Restrictions on the Extrajudicial Activities of State and Federal Judges, p. 17 (Am. Judicature Soc. 1984). These purposes would not be furthered by allowing a judge to receive a complimentary subscription to books containing Illinois statutes but disallowing the acceptance of the identical material on CD-ROM. The form of the legal resource material simply does not independently affect the presence or absence of apparent or actual impropriety, or exploitation of the judiciary, or the need for frequent disqualification.

For these reasons the Committee is of the opinion that a judge may receive a complimentary subscription to state statutes and court opinions on CD-ROM on the same basis that the judge may receive a complimentary subscription to books containing the same statutes and opinions.

It should be noted that if a judge accepts a gift of books or publications on CD-ROM having a value in excess of $100.00, the name of the donor and a description of the gift must be disclosed on the judge's annual declaration of economic interests pursuant to Illinois Supreme Court Rule 68 and accompanying administrative order.

Finally, nothing stated in this opinion should be construed as permitting the acceptance of books or publications on CD-ROM under Rule 65C(4)(a) if to do so would violate another provision of the Code. See Shaman, Lubet and Alfini, Judicial Conduct and Ethics, section 7.28 p. 201 (1990). If, for example, acceptance of books or publications on CD-ROM would create an actual impropriety or an appearance of impropriety under the particular circumstances involved, then the gift must be declined. See Illinois Supreme Court Rule 62 and Thode, Reporter's Notes to Code of Judicial Conduct, p. 84 (1973) ("The Judge must keep in mind, however, that the standard of impropriety and the appearance of impropriety in Canon 2 is applicable to this area of conduct. Therefore, the circumstances surrounding each gift that falls within (4)(a) must be considered to determine if the requirement of Canon 2 is met.")