Opinion 12-164

October 25, 2012

Please Note: This opinion has been modified by Opinion 21-22(A) concerning a judge’s obligations when a party is appearing without counsel. As stated in Opinion 21-22(A), “we no longer prohibit remittal of disqualification merely because a party is unrepresented. We hereby modify our prior opinions to abolish that requirement.” This also affects opinions “where disclosure (or disclosure and insulation) is mandated in lieu of outright disqualification” (see id. fn 3).

Digest:         (1) For two years after the election, a judge must disclose that an attorney appearing in the judge’s court participated in the judge’s prior judicial election campaign, where the attorney’s participation was more than minimal, but not at the formal leadership level. The judge retains full discretion to disqualify him/herself or remain on the case if after any such disclosure, a party objects to the judge’s continued involvement in the matter. (2) The disclosure obligation is personal to the individual attorney who participated in the judge’s campaign and does not extend to his/her partners or associates.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 09-245; 08-152; 05-152; 03-64.

Opinion:

         The inquiring judge recently ran unsuccessfully for a different judicial office. During the judge’s campaign, an attorney who is well-known in the community publicly endorsed the inquiring judge’s candidacy in a “glossy piece of literature” mailed to party members that advised the recipients of the attorney’s endorsement of the judge’s candidacy, included the attorney’s photograph and “a nice quote” from the attorney. The attorney is also a partner in a law firm that regularly appears in the judge’s court. The judge asks if he/she may preside when the law firm appears in the judge’s court.

         A judge must avoid even the appearance of impropriety (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]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         In prior Opinions, the Committee has considered the extent of an attorney’s participation in a judge’s judicial election campaign to determine whether the judge may preside when the attorney appears in the judge’s court:

         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]).

(Opinion 08-152 [footnote omitted]).

         The Committee has further advised that where attorneys held leadership positions in a campaign or maintained a continuing fund-raising role throughout the course of the campaign, disqualification subject to remittal must continue for a two-year period following the election (see Opinion 03-64, modified in part by Opinion 08-152).

         The Committee also has considered a judge’s ethical obligation when an attorney whose participation in the judge’s election campaign was more than minimal, but not at the formal leadership level, appears in the judge’s court post-election (see 09-245). The attorney co-hosted a single fund-raiser shortly before the election and made a statement supporting the judge’s candidacy (see id.). The Committee concluded 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” for two years after the election (id.). In such a case, the judge retains the discretion to determine whether disqualification is warranted (see id.).

         The Committee believes that, under the circumstances presented, the attorney’s participation in the inquiring judge’s judicial election campaign was more than minimal, but less than a formal leadership position. Therefore, as was the case in Opinion 09-245, if the attorney appears before the inquiring judge in the two year post-election period, the judge must disclose the attorney’s participation in the judge’s campaign, but the judge retains the discretion to disqualify him/herself or remain on the case if, after any such disclosure, a party objects to the judge’s continued involvement in the matter.¹ However, where another member of the attorney’s firm appears before the judge, the judge need not disclose the attorney’s involvement in the judge’s judicial election campaign so long as the attorney is not personally involved in the case.

         Nothing in this Opinion is intended to alter what the Committee previously made clear in Opinions 09-245, 03-64 and 01-07 (Vol. XIX), i.e. that no post-election disclosure obligation arises when an attorney’s or law firm’s only involvement in a judicial candidate’s campaign consisted of co-hosting one fund-raising event for the candidate.

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     ¹If a party is unrepresented, the judge must disqualify him/herself (see Opinion 05-152).