September 4, 2003
Note: This opinion has been modified, in part, by Opinion 08-152.
Digest: (1) A judge who is running for election should exercise recusal when attorneys who are engaged in fund-raising or in other active conduct in support of the judge's candidacy appear before the judge during the course of the campaign. If the attorneys held leadership positions in the campaign or maintained a continuing fund-raising role throughout the course of the campaign, recusal should extend for a two-year period following the election. Recusal in such instances is subject to remittal; (2) Being listed as a supporter of the candidate, in and of itself, does not constitute activity requiring recusal, either prior to or after the election provided the judge believes he/she can be fair and impartial; (3) A judge may use in his or her campaign literature a photograph of him/herself with another candidate for elective office, but should take steps to avoid having the photograph used by that candidate as signifying endorsement by the judge.
Rule: 22 NYCRR 100.3(E)(1); 100.3(F) Opinion 90-182 (Vol. VI); 97-129 (Vol. XVII); 01-07.
The inquiring judge is running for re-election and raises a number of question concerning his/her campaign.
The first question involves the consequences of participation by lawyers in a fund-raising event on behalf of the judge. The judge asks “If a lawyer hosts a fund-raising event for my campaign, or is a member of a host committee and the lawyer subsequently has a case in my Part, how should the matter be handled?”
In Opinion 01-07, the inquiring judge had met with a group of six attorneys, to discuss their assistance in contacting prospective contributors and notifying them of the initial fund-raiser for the judge’s campaign. None of the attorneys was to have any involvement in the campaign beyond providing assistance for this particular event.
Under the particular circumstances, the Committee concluded there should be recusal by the judge should any of the attorneys appear before him/her, during the course of the campaign, which recusal was subject to remittal. 22 NYCRR 100.3(E)(1); 100.3(F). We went on to say, however, that “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,” beyond the date of the election.
Thus, the issue here is whether being a host or a member of a host committee for a particular fund-raiser constitutes a sufficiently greater involvement thus requiring recusal for a period beyond the date of the election. See, Opinion 97-129 (Vol. XVII). It does not appear to us that there is a qualitative difference between contacting individuals, and notifying them of a fund-raiser, and serving as the host or on the committee that is hosting it. The role of the host or host committee, might well be considered virtually identical to that of the group of attorneys involved in Opinion 01-07. Accordingly, in this instance, as in Opinion 01-07, the judge should exercise recusal during the campaign should the attorney(s) appear before him/her, subject to remittal, but need not disclose or recuse following the election.
However, we hasten to add that if there is a continuing fund-raising function being performed extending for the duration of the campaign and those serving as hosts for such events are, in effect, operating as fund-raising chairpersons or as a fund-raising committee, we are of the opinion that such involvement calls for disclosure and recusal beyond the date of the election. As stated in Opinion 97-129 (Vol. XVII) which involved, in part, a finance chairman, the period of disclosure and recusal in such circumstances should extend for two years beyond the election, and is subject to remittal.
The inquirer also asks “If a lawyer volunteers on the campaign other than for fund-raising (e.g. petitioning) and the lawyer subsequently has a case in my Part, how should the matter be handled?” This question cannot be answered without regard to the particular position held and duties performed in the campaign. If, for example, the judge knows that, the attorney was an active participant in obtaining signatures on a nominating petition it might well be advisable for the judge to offer to recuse him/herself during the course of the campaign. But, as stated in Opinion 90-182 (Vol. VI) the mere fact that the attorney had been solicited by the judge or had voluntarily submitted his or her name to be used by a committee to elect the judge, does not necessarily raise an inference of partiality requiring recusal, provided that the judge feels he or she can be impartial when such attorney appears. Moreover, although it appears that Opinion 90-182 (Vol. VI), presented a post-election situation, we believe that the mere listing of an attorney as a supporter of the candidate does not necessarily require recusal during the campaign. Standing alone, that fact does not suffice to give rise to an inference of partiality should the attorney appear before the judge.
Finally, the judge asks whether he/she can appear in campaign literature photographed with other candidates for elective office. There is no ethical objection to the judge using such a photograph in his or her campaign. However, use by another candidate, which might imply an endorsement by the judge of the candidate is to be avoided, and the judge should take steps to prevent such use to the extent possible.