Opinion: 97-94

October 16, 1997

Digest:  Under the circumstances presented, the inquiring judge may not establish a legal defense fund to pay legal fees incurred in answering charges before the State Commission on Judicial Conduct involving the judge's re-election campaign and which are wholly unrelated to the performance of judicial duties. Nor may such fees be paid by the local political organization.

Rules:  22 NYCRR 100.1; 100.2(A),(B),(C);
            100.5; 100.5(A)(5);
            Opinions 96-33 (Vol. XIV);
            93-15 (Vol. XI); 89-152 (Vol. V);
            87-02 (Vol. I).


            A part-time village justice informs the Committee that following the judge's recent re-election, a complaint was filed by the State Commission on Judicial Conduct ("Commission") alleging that in a campaign letter the judge had endorsed other candidates for political office. From the materials submitted by the inquirer, it appears that a hearing before the Commission has been concluded at which the judge was represented by counsel who continues to represent the judge. The judge asks whether it is proper to (1) accept an offer from the local party or the campaign to pay the judge's legal fees; (2) set up a defense fund in order to assist in paying the judge's legal fees.

            In the opinion of the Committee, neither proposal is ethically permissible. The use of campaign funds for the purpose stated is entirely inappropriate. As this Committee has long held, unexpended campaign funds are to be returned to the donors. This requirement flows from the unequivocal language of section 100.5(A)(5) of the Rules Governing Judicial Conduct, which states that "A candidate shall not use or permit the use of campaign contributions for the private benefit of the candidate or others." See Opinions 93-15 (Vol. XI), 89-152 (Vol. V); 87-02 (Vol. I). Nor can the judge avail himself/herself of the funds of a political party. Acceptance of such funds for the purpose intended would constitute an entanglement by the judge in partisan political activity that is forbidden. 22 NYCRR 100.5.

            Further, in the view of the Committee, the judge has failed to establish a sound basis for the establishment of a legal defense fund. Presumably, such a fund would seek contributions from the public and from members of the bar. The Committee notes that the charge referred to by the inquirer arises out of a political campaign and appears to be wholly unrelated to the performance of judicial duties. Nor are any special or unique circumstances presented that might justify the formation of such a Committee. Seee.g. Opinion 96-33 (Vol. XIV). Accordingly, in the absence of such circumstances, the dangers of favoritism and the public perception of favoritism, and the necessity to protect the integrity and independence of the judiciary, militate against permitting the formation of a legal defense fund as sought by the judge. 22 NYCRR 100.1; 100.2(A),(B),(C).