January 27-28, 2010
Digest: Where an attorney’s participation in a judge’s election campaign is more than minimal, but not at the formal leadership level, the judge need not disqualify him/herself when the attorney appears in the judge’s court if the judge can be impartial. However, for two years after the election, the judge should disclose the nature and extent of the attorney's involvement in the judge's campaign when the attorney appears. If a party objects to the judge’s continued involvement in the matter, disqualification is left to the judge’s discretion.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 08-152; 06-54; 03-64; 01-07 (Vol. XIX); 97-129 (Vol. XVI); People v Moreno, 70 NY2d 403 (1987).
A newly elected judge asks whether he/she may preside over matters in which an attorney who “participated in [the judge's] campaign on a limited basis” appears and whether he/she must disclose that the attorney did so. The judge explains that the attorney in question was not an officer on the judge's campaign committee and did not maintain a continuing fund-raising or other significant role throughout the course of the campaign. Instead, the attorney co-hosted a single fund-raiser shortly before the election and “at the time of this fund-raiser, [the attorney] made a statement supporting [the judge’s ]candidacy.” The attorney’s assistance with organizing the fund-raiser included helping to compile a list of potential contributors, and “attend[ing] approximately three to four campaign committee meetings in which general campaign strategy was discussed and offer[ing] [his/her] insight on judicial campaign ethics issues.” The judge notes that he/she is confident in his/her ability to remain impartial in any proceeding in which the attorney appears.
A judge must avoid impropriety and its appearance in all the judge's activities (see 22 NYCRR 100.2), and must always act to promote public confidence in the judiciary’s integrity and impartiality(see 22 NYCRR 100.2[A]). A judge must therefore disqualify him/herself whenever his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]).
In prior Opinions, the Committee has concluded that an attorney's participation in a judicial election campaign may range from very minimal levels of involvement, that do not even require disclosure, to very active conduct in support of a judge’s candidacy which warrants disqualification when the attorney appears before the judge. As noted in Opinion 08-152:
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]).
The Committee also has advised that where an attorney organized a single fund-raiser for a judicial candidate running for re-election, the candidate, as a judge, should disqualify him/herself, subject to remittal, when that attorney (or his/her partners or associates) appears before the judge during the election campaign (see Opinions 03-64; 01-07 [Vol. XIX]). However, after the election, neither disclosure nor disqualification is required when the attorney (or his/her partners or associates) appears in the judge’s court (id.).
Here, however, the attorney's level of involvement as described falls between the levels previously addressed by the Committee. The attorney did more than simply organize a single fund-raiser in that he/she also attended and significantly participated in three or four campaign committee meetings (compare Opinions 03-64; 01-07 [Vol. XIX]). Nonetheless, the attorney did not serve in a formal leadership position during the campaign and did not continuously engage in fund-raising during the judge's campaign, which would warrant disqualification for a two-year period after the election (compare Opinions 06-54; 97-129 [Vol. XVI]).
It is now the Committee’s view that, where the nature of an attorney’s involvement in a judge’s election campaign falls between the levels previously addressed by the Committee, a judge should resolve any doubt as to how to proceed in favor of disclosing an attorney’s involvement in the judge's election campaign. However, whether disqualification is warranted is left to the individual judge to determine, in his/her discretion.
Accordingly, after a candidate for judicial office is elected and, assuming the judge can be impartial, the judge need not disqualify him/herself when an attorney who undertook more responsibility than simply organizing a fund-raiser, but never assumed any formal leadership role or continuing fund-raising role in the judge's election campaign, appears in the judge’s court. However, for two years after the election, the judge should disclose the nature and extent of the attorney's involvement in the judge's campaign whenever the attorney appears in the judge's court. If a party objects to the judge’s continued involvement in the matter, disqualification is left to the judge’s discretion (see People v Moreno, 70 NY2d 403  [where disqualification is not mandatory, it is a matter of discretion, left to the judge's personal conscience]).