September 4, 2003
Digest: Under the circumstances presented, the judge may not establish a legal defense fund to pay legal expenses incurred in connection with a determination by the State Commission on Judicial Conduct that the judge be removed from office, and the review of that determination by the Court of Appeals.
Rule: 22 NYCRR 100.1; 100.2(A),(B),(C); Opinions 97-94 (Vol. XVI);96-33 (Vol. XIV).
The inquiring judge has been the subject of a determination by the State Commission on Judicial Conduct (“Commission”) that he/she should be removed from judicial office. The charges involved conduct of the inquirer during the campaign for election to the office the judge holds. Following that determination, and upon the filing of a request for review by the Court of Appeals, the inquirer submitted to the Committee the instant inquiry. As stated by the judge:
I have extensive bills as a result of this pending appeal and litigation. It has been brought to my attention that many attorneys (and non-attorneys) in the community have expressed a desire to contribute to a legal defense fund on my behalf.
On two prior occasions the Committee addressed the question of whether a legal defense fund may be established on behalf of a judge who was facing, in one instance, an investigation by the Commission, and, in the other, a complaint by the Commission of misconduct.
In Opinion 96-33 (Vol. XIV) the inquiring judge was under investigation by the Commission. The impetus for that investigation was the judge’s ruling in a criminal case and the claimed consequences of that ruling. As noted by the Committee, “Extraordinary publicity has surrounded the matter, elected public officials have called for the judge’s removal from the bench, and beyond that have said they will cause the matter to be brought before the New York State Senate in the event the Commission determines not to have the judge removed from office.”
Confronted with such “unusual circumstances,” the Committee concluded that there was no ethical objection to forming a defense fund to assist the judge in meeting these allegations, provided that appropriate safeguards were established as to how the funds were to be sought, preserved and spent.
In Opinion 97-94 (Vol. XVI) an entirely different set of circumstances were before the Committee. The inquiring judge had recently run for re-election and it was alleged by the Commission in its complaint that in a campaign letter the judge had endorsed other candidates for political office. Rejecting the request to be permitted to establish a legal defense fund, the Committee stated:
Further, in the view of the Committee, the judge has failed to establish a sound basis for the establishment of a legal defense fund. Presumably, such a fund would seek contributions from the public and from members of the bar. The Committee notes that the charge referred to by the inquirer arises out of a political campaign and appears to be wholly unrelated to the performance of judicial duties. Nor are any special or unique circumstances presented that might justify the formation of such a committee. See e.g., Opinion 96-33 (Vol. XIV). Accordingly, in the absence of such circumstances, the dangers of favoritism and the public perception of favoritism, and the necessity to protect the integrity and independence of the judiciary, militate against permitting the formation of a legal defense fund as sought by the judge. 22 NYCRR 100.1; 100.2(A), (B), (C).
We are of the opinion that the views and concerns expressed in Opinion 97-94 (Vol. XVI), are controlling in the present instance. Here, too, the claimed misconduct “arises out of a political campaign and appears to be wholly unrelated to the performance of judicial duties. Nor are any special or unique circumstances presented that might justify the formation of such a committee. See, e.g. Opinion 96-33 (Vol.XIV).”
Further, we note that in the matter before us the Commission has already concluded its work, and thus any funds raised would apparently be used, in part, to pay legal bills for services already rendered. Thus, lawyers (and others) would be making contributions for the relief of the judge in meeting his/her obligation to satisfy outstanding bills for legal services already performed. While not at all decisive, this fact does add to what we believe are the negative implications and consequences inherent in the establishment of such a fund. This does not mean that an earlier request would have resulted in a conclusion other than what is expressed herein, but merely that this particular fact highlights the dangers posed by the request.
In short, in this instance, as in Opinion 97-94 (Vol. XVI), “the dangers of favoritism and the public perception of favoritism and the necessity to protect the integrity and independence of the judiciary militate against permitting the formation of a legal defense fund as sought by the judge. 22 NYCRR 100.1, 100.2(A, (B), (C).” We therefore advise the judge that such a fund should not be established.