January 25, 2001
Under the circumstances, a judge running for election should exercise recusal,
subject to remittal, where attorneys involved in planning an initial fund-raiser
(or their partners or associates) appear before the judge during the campaign,
except that in cases where a party is appearing pro se, there should not
be a remittal.
22 NYCRR 100.3(E)(1); 100.3(F);
Opinion 97-129 (Vol. XVI).
A judge who is seeking election has met with a group of six attorneys to discuss their assistance in notifying individuals and prospective contributors of the initial fund-raiser for the judge's campaign. None of the six will have any involvement in the campaign beyond providing such assistance for this particular event. Of the six, two are partners in law firms; two are solo practitioners, and two are with legal aid/legal services organizations. The judge seeks the Committee's advice with respect to possible disqualification in matters where a member of the group is appearing before the judge.
At the outset, we note that the event planned is to take place early in the campaign and that none of the six attorneys will hold any office or other position in the campaign or provide any assistance beyond contacting persons with respect to the initial fund-raiser. Nonetheless, that involvement alone does create a situation in which the judge's impartiality might reasonably be questioned (22 NYCRR 100.3[E]), should appearances be made during the course of the campaign. We therefore advise that the judge should disclose the involvement and recuse himself or herself where appearances are made by any of he attorneys, as well as associates or partners of the two who are members of law firms. Such recusal is, however, subject to remittal pursuant to section 100.3(F) of the Rules Governing Judicial Conduct, unless the opposing party is appearing pro se. In the latter instance, the disqualification should not be subject to remittal.
Further, disclosure and recusal are not required beyond the date of the election. Once the campaign is concluded, the limited involvement in a discrete event early in the campaign should not give rise to a possible inference of partiality, and thus disclosure and recusal should no longer be required. See Opinion 97-129 (Vol. XVII).