September 11, 1997
A judge who is a candidate for the same judicial office may request attorneys
who regularly appear before the judge to furnish comments or testimony
to a Bar Association Screening Committee, only if such materials are given
directly and exclusively to the Screening Committee and not to the judge.
The judge may furnish to the Screening Committee as references, the names
of attorneys who regularly appear before the judge.
22 NYCRR 100.5(A)(5);
Code of Judicial Conduct, Canon 7(B)
Opinion 92-19 (Vol. IX).
A judge, who is a candidate for election to the same judicial office, inquires whether it is permissible to ask attorneys who regularly appear before the judge to write favorable comments or give testimony to a local Bar Association Judicial Screening Committee. The judge, who was recently found unqualified by the Screening Committee, intends to resubmit his/her name and wants to provide the Screening Committee with favorable input.
Canon 7(B) of the Code of Judicial Conduct states in part: "A candidate, including an incumbent judge, for a judicial office that is filled by a public election ... should not himself solicit publicly stated support, but he may establish committees ... Such committees are not prohibited from soliciting campaign contributions and public support from lawyers." Similarly, section 100.5(A)(5) of the Rules Governing Judicial Conduct also provides for the establishment of campaign committees, which likewise are authorized to solicit support from lawyers.
In construing both Canon 7(B) and the predecessor of section 100.5(A)(5), this Committee, in Opinion 92-19 (Vol. IX), advised that a judge may ask individual attorneys to join the judge's campaign committee for various purposes, including the obtaining of public statements of support.
The distinguishing factor here is that the judge is asking for written comments or actual testimony in support of the judge's candidacy during the evaluation process. In the Committee's view, if a judge is permitted to ask attorneys to join the judge's campaign committee, it is not impermissible to ask for their support in the evaluation by the local bar association, provided the manner in which the support is provided is consistent with certain restrictions.
In order for the judge to be insulated from even the appearance of impropriety, it is essential that any solicited statements of approval or support should not be given to the judge but must be provided directly and exclusively to the Screening Committee. This eliminates the possibility that the attorney might feel obligated to make favorable comments, and, in return, expect favorable treatment from the judge in future proceedings.
Assuming written or actual testimony is allowed as a part of the process, the judge may supply names of attorneys who regularly appear before the judge to the Screening Committee as references or may request from attorneys letters of reference to be sent directly and exclusively to the Committee.
Accordingly, the question is answered in the affirmative as long as the
Screening Committee process allows for references on behalf of the candidate,
and the attorneys are required to submit their comments directly and exclusively
to the Committee.