December 3, 2015
Digest: (1) A law clerk who conferences cases on behalf of a judge may, in his/her capacity as a judicial candidate, film a campaign commercial depicting a simulated conference, provided it is not misleading and there is no connotation of a judicial context. (2) Whether disclosure or disqualification obligations arise out of the relationship between a subsequently elected judge and an attorney who appeared in that judge’s campaign commercial depends also on any other facts that describe the nature of their relationship.
Rules: 22 NYCRR part 29; 100.0(A); 100.0(Q); 100.3(B)(8); 100.5(A)(2)(i); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); 100.6(A); Opinions 11-125; 09-162; 08-152; 07-139; 05-101; 04-16.
The inquiring judicial candidate is currently a law clerk who frequently conferences cases for his/her judge.1 The candidate asks if he/she may film a campaign commercial featuring a simulated court conference, with a local attorney, similar to his/her responsibilities as a court employee. The commercial would briefly show the candidate meeting with two people in a conference room and apparently discussing a matter. There would be no audible voices from the simulated conference, and the word “simulation” would appear “across the bottom of the screen.” The inquirer would carefully “avoid any possibility of misleading the public that [he/she is] participating in an actual conference occurring in the courthouse.” The judicial candidate also asks about his/her disclosure or disqualification obligations with respect to this attorney assuming the candidate is elected a judge.
A judge or non-judge running for elective judicial office must comply with relevant parts of the Rules Governing Judicial Conduct (see 22 NYCRR 100.6[A]; cf. 22 NYCRR 100.0[A] [defining “candidate”]). During the applicable window period (see 22 NYCRR 100.0[Q]), a judicial candidate may participate in his/her own campaign, and appear in ads supporting his/her candidacy, within certain limits (see 22 NYCRR 100.5[A][i]). All campaign speech and conduct must reflect the judiciary’s dignity, impartiality, integrity and independence (see 22 NYCRR 100.5[A][a]). For example, a judicial candidate may not make pledges, promises or commitments inconsistent with the impartial performance of adjudicative duties (see 22 NYCRR 100.5[A][d][i]-[ii]); or knowingly make any false statement or misrepresent the identity, qualifications, or any fact about him/herself or an opponent (see 22 NYCRR 100.5[A][d][iii]).
A judicial candidate may present his/her qualifications to the public truthfully and not misleading (see e.g. Opinions 09-162; 04-16 [former judge may appear wearing judicial robes in photographs using the phrase “Former Village Justice”]).
Also, a judicial candidate must carefully avoid creating “a public perception of entanglement of the judiciary itself in the political process” (Opinion 05-101) or “convey[ing] the impression ...the courthouse is being used for a political purpose” (Opinion 07-139). Thus, the Committee has advised that a judge may not film a campaign video showing the judge in the courthouse and asking viewers for their vote (see Opinion 07-139). Nonetheless, a judicial candidate may take campaign photographs in areas where the public may also take pictures, such as the courthouse steps (see Opinion 05-101). Also, subject to administrative approval (see 22 NYCRR pt 29), a judge may use a photo taken in a courthouse library or chambers, provided those locations appear “generic in nature (i.e. a library and an office)” and “there is no connotation of a judicial context” (see Opinion 05-101).
Here, the judicial candidate seeks to present his/her qualifications by simulating some of his/her responsibilities as a law clerk in a campaign commercial. The candidate must cautiously avoid inadvertently deceiving the public or creating an impression the courthouse is being used for political purposes (see Opinion 07-139). However, provided “there is no connotation of a judicial context” (see Opinion 05-101), a campaign commercial depicting the candidate with two other people in a generic conference room inaudibly discussing a matter, with the word “simulation” clearly appearing during that segment, is ethically proper.2
The remaining question, should the candidate be elected, is whether the judge must disclose or disqualify him/herself in matters involving an attorney who appeared in the candidate’s campaign video. As the Committee has advised (Opinion 08-152 [citations omitted]):
only “active” conduct in support of a judicial campaign requires recusal. Typically, such active conduct involves a leadership role in the candidate’s campaign committee, such as “campaign manager, campaign coordinator, finance chair or treasurer.” By contrast, the fact that a lawyer merely attends a judicial candidate’s event, that a lawyer “voluntarily submitted [his/her] name to be used by the committee,” or that a lawyer obtains signatures on a petition 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.
Indeed, provided a judge believes he/she can be fair and impartial, an attorney’s public 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 conduct that requires disclosure or recusal” (Opinion 08-152).
Here, too, an attorney’s appearance in a judicial campaign video does not, without more, require either disclosure or disqualification. Thus, the judge’s disclosure or disqualification obligations, if any, will arise out of the specific relationship between the judge and the attorney. Because “human relationships are ... varied, fact-dependent, and unique to the individuals involved” (Opinion 11-125), the judge must carefully consider the nature of his/her relationship with the attorney using the categories of social relationship set forth in Opinion 11-125 and apply those principles found there. Of course, if the judge doubts his/her ability to be fair and impartial in a specific case, he/she must simply disqualify him/herself.
1 While the exact parameters of a court employee’s responsibilities when conferencing cases may vary, depending on the judge’s specific instructions, typically he/she will meet with both sides and try to discern areas of agreement to narrow the issues for trial or resolution.
2 Inaudible dialogue will minimize any risk of publicly commenting about a pending or impending case within the United States or its territories (see 22 NYCRR 100.3[B] [judges must require “court personnel subject to [their] direction and control” to comply with the public comment rule]).