Opinion 25-31
March 27, 2025
Digest: Provided the judge establishes an attorney-client relationship and is fairly compensated for the work, a part-time lawyer judge may provide legal services relating to compliance with Federal Election Commission (“FEC”) regulations, including (a) reviewing financial reports for 501(c)(4) organizations, super political action committee (“PAC”) organizations, and federal campaign committees, and (b) providing legal opinions and reviewing advertisements and solicitations by PACs and campaign committees. The judge should take care to avoid even the appearance of providing political advice or strategy.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.5(A)(1); 100.5(A)(1)(h); 100.6(B)(1)-(4); 19-77; 18-77; 09-165; 09-28; 02-68; 98-74.
Opinion:
The inquiring part-time attorney judge, who is also a solo private practitioner, would like to undertake “compliance work to 501(c)4 and Super PAC organizations.” The judge states that these entities “are not registered with any political party—nor are [they] affiliated with any particular candidate or coordinating with any particular party or candidate.”[1] The compliance work involves “reviewing quarterly and periodic financial reports to ensure compliance with FEC regulations,” but the judge “would not be serving as a member of any such organization—only as an attorney offering compliance opinions.” The judge would also like to undertake similar compliance work for “federal campaign account committees for U.S. Congress members and candidates” and “provide legal opinions and review of PAC/501(c)(4)/campaign committee advertisements and solicitations” to ensure compliance with FEC regulations. The judge asks only if he/she may undertake the described legal work, and would not provide political advice or strategy.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]) and a judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A][1]). Indeed, prohibited political activity includes “making a contribution to a political organization or candidate” (22 NYCRR 100.5[A][1][h]). Part-time judges may nonetheless practice law subject to certain limitations (see 22 NYCRR 100.6[B][1]-[3]) and may accept private employment which “is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties” (22 NYCRR 100.6[B][4]).
We have advised that a part-time judge who serves on a not-for-profit historical society’s board of directors may participate in an audit review process of the organization’s records where that participation would involve “only review and no fiduciary responsibility” (Opinion 19-77). We have also advised that part-time judges may maintain concurrent employment as the chief financial officer/treasurer for an airport authority, whose employment responsibilities included oversight of internal audits (see Opinion 18-77); and may assist a not-for-profit organization by auditing the organization’s financial records (see Opinion 09-28). Thus, auditing or compliance work is not inherently incompatible with part-time judicial office.
Given that this particular compliance work involves compliance with election regulations, however, we must also consider a second line of opinions. We have said a part-time judge may serve as a legal advisor to a not-for-profit pro-life advocacy organization—even though he/she may not serve on its board of directors—provided that “an attorney-client relationship exists and 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” (Opinion 98-74). We also advised that a part-time judge acting as an attorney may give legal and/or ethical advice to public officers, party officials and/or political party members if the part-time judge can avoid involvement in any aspect of the candidate’s political campaign, and he/she is fairly compensated for such services (see Opinions 09-165; 02-68). We note that fair compensation is required to avoid even the appearance of making an in-kind contribution to a political organization or candidate (cf. 22 NYCRR 100.5[A][1][h]).
In our view, this part-time lawyer judge may likewise provide legal services relating to compliance with FEC regulations, including (a) reviewing financial reports for 501(c)(4) organizations, super PAC organizations, and federal campaign committees, and (b) providing legal opinions and reviewing advertisements and solicitations by PACs and campaign committees. However, the judge must establish an attorney-client relationship, be fairly compensated for the work, and take care to avoid even the appearance of providing political advice or strategy (see Opinions 09-165; 02-68; 98-74).
[1] A “super PAC” is an independent political action committee (PAC) “that can accept unlimited contributions from individuals and organizations (such as corporations and labor unions) and spend unlimited amounts in support of a candidate but that cannot directly contribute money to or work directly in concert with the candidate it is supporting” (Merriam-Webster Online Dictionary, available at http://www.merriam-webster.com/dictionary/super%20PAC [accessed April 10, 2025]).