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Taking Ethical Considerations Seriously: Not Accepting Small Gifts

September 9, 2014

I turned down a Starbucks gift card last night from a lawyer who intended it only as a gesture of hospitality and appreciation.

I turned down the gift card even under circumstances where I thought it was probably OK to accept it because of the circumstances in which it was offered.

I did so because I take seriously the ethical considerations under which I must guide my conduct as a Neutral and I always err on the side of caution.

At the time I turned down the gift card, I was fully aware of a constraint on Neutrals in Court-Connected mediations that has guided me for years in all mediation circumstances. California Rule of Court 3.859 (d) states:

“A mediator must not at any time solicit or accept from or give to any participant or affiliate of a participant any gift, bequest, or favor that might reasonably raise a question concerning the mediator’s impartiality.”

Also, at the time I turned down the gift card, I was aware of an opinion issued on August 26, 2014, by the California Supreme Court Committee on Judicial Ethics Opinions entitled, Accepting Gifts of Little or Nominal Value under the Ordinary Social Hospitality Exception. See, http://www.judicialethicsopinions.ca.gov/sites/default/files/CJEO_Formal_Opinion_2014-005_0.pdf

(I construe judicial ethics opinions as applicable also to Neutrals like me, as we occupy a quasi-judicial role in mediation and certainly in arbitration.)

A colleague of mine, Dina Haddad, wrote on LinkedIn about the foregoing judicial ethics opinion in the following way:

“California Supreme Court Committee has banned judges from accepting small gifts, such as tickets to local events and food items, because they can cause the appearance of influence, favor, or advantage.”

The opinion itself is not so straightforward and suggests that it is only advisory and subject to the discretion of the judge under the circumstances.  It says:

Items of little or nominal value are subject to the canons governing gifts. Under canons 4D(5) and 4D(6), judges may not accept items of little or nominal value if the gift is offered by a party, if acceptance of the gift would create a perception of influence, or if a reasonable person would believe that advantage was intended or would be obtained by acceptance of the gift.

Id. at p. 14.

Also,

In the committee’s opinion, items of little or nominal value that are not otherwise banned may be accepted under the ordinary social hospitality exception in canon 4(6)(g) if the gift is ordinary by community standards, offered for social traditions or purposes, and hospitable in nature.

Id.

Even so, I tend toward overreacting to ethical constraints and over-compensate, erring on the side of “that’s very kind of you but no thanks” to avoid any possible appearance of impropriety.

I don’t even let other attorneys pay for my lunch when offered, congenially replying that “I am a Neutral and that I don’t want to have to disclose it next time we work together in mediation.”

Maybe turning down lunch or a gift card hurts the offeror’s feelings, or maybe it’s perceived as rude, and maybe rigidly applying ethical rules is overdoing it, but I sleep better at night for it regardless.

That’s just how I am about these things.

***

David I. Karp is a full time mediator of real estate and business disputes in Southern California. His website is at http://karpmediation.com .

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