January 26, 2006
This is in response to your inquiry (05-115) in which you ask whether it is ethically permissible to appoint certain attorneys or members of their law firms as fiduciaries pursuant to Part 36 of the Rules of the Chief Judge. You have explained that when you were last re-elected, the County Chairman of the party that endorsed you for re-election asked certain attorneys to be present at the Board of Elections when absentee ballots were opened.
Pursuant to the Rules Governing Judicial Conduct, a judge, among other things, must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary, must not be influenced by outside relationships, including political ties, and must avoid impropriety and the appearance of impropriety. 22 NYCRR 100.2.
In our opinion, if the attorneys who were present while absentee ballots were opened were actively involved in advocating on your behalf with respect to disputed ballots (if any) that may have been cast for the office of Columbia County Judge, you should refrain from appointing them or members of their law firms as fiduciaries pursuant to Part 36 of the Rules of the Chief Judge for a period of two years following the election. If, however, the attorneys were merely present and did not advocate on your behalf with respect to the ballots and they and the members of their law firms are otherwise qualified for appointment as fiduciaries pursuant to Part 36 of the Rules of the Chief Judge, it is ethically permissible for you to make such appointments.