Opinion 08-42
June 6, 2008
Digest: A lawyer who is a non-judge candidate for elective judicial office may accept employment from another candidate or from a political party as an election law expert who may be called upon to advocate for a candidate in court only if (1) he/she is formally retained so that an attorney-client relationship exists; (2) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and, (3) he/she is fairly compensated for his/her legal services.
Rules: 22 NYCRR 100.5(A)(1)(c)-(e), (h);
100.6 (A), (B); 1200.44; Opinions 02-68; 98-74 (Vol. XVII); 91-68 (Vol. VII).
Opinion:
A lawyer is running for elective judicial office and inquires whether he/she may accept employment from another candidate or political party “as an election law expert” where he/she “may be called upon to advocate for a candidate in [c]ourt.” Election law ordinarily constitutes a part of the inquiring candidate’s legal practice, and he/she has experience representing candidates in petition challenges.
Section 100.5 of the Rules Governing Judicial Conduct governs the political activities of both incumbent and non-judge candidates for elective judicial office (see also 22 NYCRR 100.6[A]; 22 NYCRR 1200.44 [DR 8-103]). These Rules, among other restrictions, prohibit such candidates from engaging in any “partisan political activity” other than the conduct of their own campaigns; from “participating in any political campaign for any office;” and from publicly endorsing or opposing another candidate other than by running against him/her (see 22 NYCRR 100.5[A][1][c]-[e]). In addition, such candidates may not make contributions to any other candidate or to any political organization (see 22 NYCRR 100.5[A][1][h]).
The Committee previously has considered whether a judge who is permitted to practice law may serve as the legal advisor to the board of directors of a political party (see Opinion 98-74 [Vol. XVII]). The Committee concluded that such activity is permissible so long as the judge ensures that “an attorney-client relationship exists and that the judge’s actions are clearly identifiable as those of an attorney representing a client, as contrasted with actions pursued solely for the purpose of participating in policy-making decisions of the organization” (id.). Similarly, the Committee advised that a judge who is permitted to practice law may serve as counsel of record for a candidate for election to public office only if the judge can avoid involvement in any aspect of the candidate’s political campaign and is fairly compensated for any services provided (see Opinion 02-68).
In the present inquiry, the same considerations apply. Therefore, but subject to similar caveats, an attorney who is a non-judge candidate for elective judicial office may accept employment from another candidate or political party as an election law expert who may be called upon to advocate for a candidate in court
. First, he/she must be formally retained so that an attorney-client relationship exists. Second, his/her actions must be clearly identifiable as those of an attorney representing a client and not as actions pursued solely for the purpose of participating in partisan political activity or to endorse another candidate or political organization (see Opinion 98-74 [Vol. XVII]). Therefore, the candidate’s services must be limited to those of a litigator, legal advisor or expert witness on election law. He/she should only meet with a client to confer about the case in non-political settings and must be “fairly compensated” for his/her legal services to avoid the perception that he/she is making an improper contribution to the political party or candidate (Opinion 02-68; see also 22 NYCRR 100.5[A][1][h]; Opinion 91-68 [Vol. VII]).