Opinion 05-117

December 8, 2005

Digest:         A candidate running for a Family Court seat should not indirectly endorse an incumbent judicial candidate by expressing in his/her campaign materials the desirability of having the candidate join the incumbent on the bench.

Rule:            22 NYCRR 100.5(A)(1)(e) and (A)(2)(ii)

Opinion:

         A practicing attorney who is running for election to a Family Court seat has asked whether it would be permissible to distribute an advertisement which, in addition to providing information about his/her professional qualifications for service on the bench, states that he/she is the “unanimous choice” to join an incumbent Family Court judge on the bench. The incumbent is running for re-election.

         As a general matter, a judicial candidate may distribute an advertisement in support of his/her candidacy, and the above-described advertisement contains permissible statements regarding the candidate’s professional achievements and

experience as well as the slogan “vote experience not politics.” See 22 NYCRR 100.5(A)(2)(ii), which states that a judge or non-judge who is a candidate for public election to judicial office, except as provided by law, may “appear in newspaper, television and other media advertisements supporting his or her candidacy, and distribute pamphlets and other promotional campaign literature supporting his or her candidacy.”

          However, the inquiring candidate’s proposed statement that he/she is the “unanimous choice” to join on the bench a sitting judge running for re-election is not permissible. As provided in 22 NYCRR 100.5(A)(1), sitting judges and all others running for judicial office may not directly or indirectly engage in any political activity prohibited by this section, including, but not limited to, “publicly endorsing or publicly opposing (other than by running against) another candidate for public office.” 22 NYCRR 100.5(A)(1)(e). Even, if other persons are being cited (“unanimous choice”) the use of it by the candidate in referring to the incumbent constitutes an indirect endorsement of the incumbent judge’s bid for re-election. It is, therefore, improper, and we advise the candidate to remove the statement from the otherwise permissible advertisement.