Opinion 19-22

March 14, 2019

Digest:         After Election Day, a judge may appoint an attorney who merely hosted a single campaign fund-raiser for the judge to a Part 36 position for which the attorney is qualified, provided the appointment is made impartially and on the basis of merit.

Rules:          22 NYCRR 36.0; 36.1(a)(9); 36.2(c)(4)(ii); 100.2; 100.2(A); 100.3(C)(3); Opinions 18-102; 18-35; 17-127; 16-168; 09-245; 03-64; 01-07.

Opinion:

         A judge asks if he/she may appoint certain solo practitioners who sponsored a single fund-raiser in connection with his/her recent election campaign as guardians ad litem or other Part 36 guardian appointments.

         A judge must always 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]). A judge must exercise the power of appointment impartially and on the basis of merit and must avoid nepotism and favoritism (see 22 NYCRR 100.3[C][3]). For Part 36 appointments, a judge also may not appoint a person who served as “campaign chair, coordinator, manager, treasurer or finance chair” for his/her judicial campaign, “or the spouse, sibling, parent or child of that person, or anyone associated with the law firm of that person ... for a period of two years following the judicial election” (see 22 NYCRR 36.1[a][9]; 36.2[c][4][ii]).

         During a judge’s election or re-election campaign, the judge is disqualified, subject to remittal, when attorneys who host a fund-raiser for the campaign appear before the judge, beginning once the invitations to the fund-raiser have been sent out (see Opinion 18-35). Where, as here, the attorneys’ campaign involvement is limited to hosting a single fund-raiser, as opposed to a continuing fund-raising function or other leadership role, the judge’s obligation to disqualify him/herself ends on Election Day (compare Opinions 18-35; 01-07 with Opinions 03-64).¹ As the election has already taken place, we conclude the judge may preside in matters involving these attorneys, provided he/she can be fair and impartial.

         Next, Part 36 prohibits a judge from appointing a person who has served as “campaign chair, coordinator, manager, treasurer or finance chair” for a judicial campaign for a two-year period after the election (22 NYCRR 36.2[c][4][ii]; Opinion 16-168). The prohibition does not encompass attorneys who sponsored a single fund-raiser and had no continuing involvement in the campaign apart from that one fund-raiser.

         Thus, this judge may, post-election, appoint any of the qualified attorneys who hosted a single campaign fund-raiser to a Part 36 position, if the attorney is “trained and competent” and the appointment is an impartial one based on “merit, without favoritism, nepotism, politics or other factors unrelated to the qualifications of the appointee or the requirements of the case” (22 NYCRR 36.0; 100.3[C][3]; Opinions 17-127; 16-168).

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¹ “An elected judge’s obligation when a supporter or contributor appears before the judge ‘depends on the level of the supporter’s or contributor’s involvement in these campaigns’” (Opinion 18-102). For example, where attorneys undertake a “continuing fund-raising function” during the campaign, serving in essence “as fund-raising chairpersons or as a fund-raising committee,” the disqualification period continues for two years after the election (Opinion 03-64), but “[w]here an attorney’s participation in a judge’s election campaign is more than minimal, but not at the formal leadership level,” disclosure is mandated in lieu of outright disqualification for the same period (Opinion 09-245).