Opinion: 01-98

October 25, 2001

Digest:  During a campaign for judicial office, a candidate may bring to the public's attention the fact that his or her opponent, who is the incumbent, had been publicly admonished by the State Commission on Judicial Conduct.

Rule:  Jud. Law §44(7); 22 NYCRR 100.5(A)(4)(a);


            A candidate for judicial office is running against an incumbent who had previously been admonished by the State Commission on Judicial Conduct ("Commission"). The determination of admonition by the Commission was a public sanction pursuant to Judiciary Law §44(7). The inquirer seeks the advice of the Committee as to whether he/she may "raise this public admonition" during the campaign.

            Under section 100.5(A)(4)(d)(iii) of the Rules Governing Judicial Conduct a candidate for judicial office may not "knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent." 22 NYCRR 100.5(A)(4)(d)(ii).

            Here, the fact sought to be publicized involves an official finding of misconduct on the part of a judge who is now seeking re-election. That fact is a matter of public record. For, as provided for in Judiciary Law §44(7), where the Commission determines that a judge be admonished, censured, removed or retired, "the record of its proceedings shall be made public and shall be made available for public inspection . . ." Jud. Law §44(7).

            We see no reason why public reference cannot be made during the campaign to what has been made a matter of public record, as provided for under the Judiciary Law. It is a "fact concerning the . . . opponent" that his or her adversary may raise in the campaign. 22 NYCRR 100.4(A)(4)(d)(iii). Any such references should, of course, be made in a manner which maintains the dignity appropriate to judicial office, as required by section 100.5(A)(4)(a) of the Rules.