Opinion 19-76

June 20, 2019

Digest:         Neither disclosure nor disqualification is mandated solely because a political party’s county leader appears as an attorney before a judge who is currently seeking the party’s support for elective judicial office, provided the county leader is not playing an active and significant role within the judge’s campaign and the judge can be fair and impartial.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 18-102; 12-28; 11-64; 02-108; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge is an announced candidate for elective judicial office and currently seeks a political party’s nomination. The party’s county leader¹ practices law in the judge’s court. The judge believes he/she can be fair and impartial when the county leader appears on behalf of a client, but asks if he/she must nonetheless disclose or recuse during the campaign.

         Judges 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]). Thus, they must not allow family, social, political or other relationships to influence their judicial conduct or judgment (see 22 NYCRR 100.2[B]). When disqualification is not specifically required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), judges must still recuse in cases where their impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). However, where recusal is not required under objective standards, a judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

As described in Opinion 18-102 (citations omitted):

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.” Where an individual played “an active and significant role in the judge’s [election] campaign,” the judge must “disclose and in some cases disqualify” when he/she appears. Active and significant roles include leadership positions in the judge’s campaign, such as “campaign manager, campaign coordinator, finance chair, or treasurer,” or a continuing fund-raising role in the campaign.

         Following these principles, we said a judge is not disqualified, and need not make any disclosure, merely because an attorney appearing on behalf of a client recently served on a party’s executive committee “providing social media and website help to the party’s entire slate of candidates,” including the judge (Opinion 18-102 [noting the attorney “provided similar services to all slate candidates”]); served as a party-appointed campaign advisor “to advise several candidates during a recent election, including the judge” (Opinion 12-28); or served on a political party’s judicial screening committee that recently screened the judge (see Opinion 11-64).

         In each instance, the attorney did not play an active, significant or pivotal role within the judge’s campaign, even though he/she actively supported the political party’s slate. Somewhat analogously, we also said a judge need not disqualify him/herself merely because a political party’s officer is likely to be a material witness, where “the party official did not play any specific role in the judge’s campaign beyond being an officer in the party that designated the judge” (Opinion 02-108).

         Here, too, we conclude the judge’s impartiality cannot reasonably be questioned (see 22 NYCRR 100.3[E][1]). Accordingly, neither disclosure nor disqualification is mandated solely because the party’s county leader appears before the judge as an attorney during the judge’s window period, provided the county leader is not playing an active and significant role within the judge’s campaign such as (a) campaign manager, campaign coordinator, finance chair, treasurer, or other leadership position in the judge’s campaign or (b) a continuing fund-raising role in the judge’s campaign (see Opinions 18-102; 12-28; 11-64; 02-108).

         Rather, the judge may preside if he/she can be fair and impartial in the case, a matter confined solely to the judge’s discretion (see id.; People v Moreno, 70 NY2d 403, 405 [1987]).

         The judge may, likewise in his/her sole discretion, voluntarily disclose his/her candidacy and the attorney’s role as county party leader as a prophylactic measure, without incurring any obligation to disqualify him/herself.

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¹ For simplicity, we refer to the party’s county committee chair as the “county leader.”