December 4, 2008
Digest: A judge who is a judicial candidate within his/her window period may ask attorneys who regularly appear before him/her to attend a reception and speak to attendees about their experience appearing before the judge, as long as he/she takes care to avoid any appearance of undue pressure on the attorneys in making this request. Recusal is not thereafter required, as long as the judge believes he/she can be fair and impartial.
Rules: 22 NYCRR 100.0(A); 100.0(Q); 100.3(E); 100.2; 100.2(A);100.5(A)(5); Opinions 07-26; 07-24; 06-54; Joint Opinion 05-105, 05-108, and 05-109; 04-106; 03-64; 02-108; 01-44 (Vol. XX); 97-99 (Vol. XVI); 90-196 (Vol. VI); 90-182 (Vol. VI).
A full-time judge who seeks to become a political party’s nominee for the Supreme Court plans to host a reception for judicial delegates and to invite judicial delegates, district leaders, state committee members, and other supporters to attend. The judge asks whether he/she also may invite attorneys who regularly appear before him/her to “speak about [the judge’s] work on the bench.”
A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). During his/her Window Period (see 22 NYCRR 100.Q), a judge who is a candidate for public election to judicial office may personally seek the support and endorsement of lawyers who appear before him/her (see 22 NYCRR 100.0[A]; 100.0[Q]; 100.5[A]; Opinions 07-24; 01-44 [Vol. XX]), but may not improperly pressure lawyers who have cases pending before him/her to gain their support, or even appear to do so(Joint Opinion 05-105, 05-108, and 05-109; Opinion 97-99 [Vol. XVI]). Therefore, in the Committee’s view, a judge within his/her window period may ask attorneys who regularly appear before him/her to attend a reception and speak to other attendees about their experiences appearing before the judge, subject to the aforementioned considerations.
The remaining questions are whether the judge must disclose that an attorney spoke in support of the judge’s candidacy at the judge’s request when the attorney appears before the judge or whether the judge must exercise recusal from matters involving attorneys who spoke at the judge’s request in support of the judge’s candidacy when the attorney appears before the judge. The Committee has previously determined that only “active” conduct in support of a judicial campaign requires recusal (Opinions 07-26; 04-106; 03-64). Typically, such active conduct involves a leadership role in the candidate’s campaign committee, such as “campaign manager, campaign coordinator, finance chair or treasurer” (Opinion 02-108). By contrast, the fact that a lawyer merely attends a judicial candidate’s event (Opinion 04-106), that a lawyer “voluntarily submitted [his/her] name to be used by the committee” (Opinion 90-182 [Vol. VI]), or that a lawyer obtains signatures on a petition (see Opinion 90-196 [Vol. VI]) would not, standing alone, trigger any recusal obligations on the candidate’s part, as long as the candidate believes he/she can be fair and impartial (Opinion 07-26; 22 NYCRR 100.3[E]).1
The Committee believes that an attorney’s support of a judge’s candidacy by speaking publicly about the judge at one fund-raiser, at the judge’s request, does not reach the level of active campaign involvement that requires disclosure or recusal, provided the judge believes he/she can be fair and impartial (22 NYCRR 100.3[E]).
1 Opinions 07-24, 04-106, and 03-64 are hereby modified to the extent that they incorrectly suggest that obtaining petition signatures for a judicial candidate constitutes “active conduct” in support of the campaign that may, in and of itself, necessitate the candidate’s recusal.