Opinion 06-54

April 27, 2006

Please Note: This opinion has been modified by Opinion 21-120, which states: “A judge’s obligation to disqualify in matters involving their former campaign manager terminates two years after the campaign manager relationship has ended.  Once the two-year period expires, the judge may preside in matters involving the former campaign manager, provided the judge can be fair and impartial, and disclosure is not required.  Opinions 06-54 and 07-26 are overruled or modified to the extent inconsistent with this conclusion.”

Digest:       (1) For two years after the conclusion of a campaign for judicial office, a judge should recuse from any matters in which his/her former campaign manager is personally involved, subject to remittal. Thereafter, the judge should continue to disclose the attorney’s prior role as the judge’s campaign manager, and should seriously consider recusal if requested. (2) With respect to other attorneys from the former campaign manager’s firm, including an attorney listed as “of counsel” on firm letterhead, the judge should continue to disclose the relationship, and should consider recusal if the parties’ motions warrant it.

Rules:        22 NYCRR 100.3(E)(1); 100.3(F); Opinions 05-124; 03-64; 03-10; 97-129 (Vol. XVI); 89-107 (Vol. IV).

Opinion:

         A judge who ran unsuccessfully for higher judicial office inquires regarding his/her recusal and disclosure obligations when the judge’s former campaign manager, or attorneys from the former campaign manager’s law firm, appear before the judge, after the campaign has concluded. In particular, the judge asks whether the same rule applies to an attorney who does not retain any financial interest in the firm but appears on the law firm’s letterhead as “of counsel.”

         The campaign manager plays a significant, pivotal role in any campaign for elective office and is therefore treated differently from those who played lesser campaign roles. For instance, during a judge’s campaign for judicial office, the judge should recuse from all matters in which his/her campaign manager appears. Opinions 03-64; 97-129 (Vol. XVI).

         The current inquiry requires the Committee to address a judge’s recusal obligations with respect to an attorney who is “of counsel” to his/her former campaign manager’s firm, after the campaign has concluded. This should be placed in context of the judge’s obligations when the campaign manager him/herself appears before the judge.

         For two years after the campaign is concluded, the judge must disqualify himself/herself in any proceeding in which the former campaign manager is personally involved. 22 NYCRR 100.3(E)(1); Opinions 03-64; 97-129 (Vol. XVI). This recusal is subject to remittal, pursuant to the Rules Governing Judicial Conduct. 22 NYCRR 100.3(F). Thus, the judge should also disclose the relationship on the record and may preside if the parties consent. After this two-year period, the judge should continue to reveal on the record the prior relationship with the former campaign manager. If any party objects, the judge should seriously consider recusal, and should do so unless the judge concludes the objection is frivolous, in bad faith, or is wholly without merit. Opinions 97-129 (Vol. XVI); 89-107 (Vol. IV).

         The judge’s post-campaign recusal and disclosure obligations also extend to attorneys from the former campaign manager’s law firm. Opinion 97-129 (Vol. XVI). After the campaign, the judge should disclose that the attorney appearing before him/her practices law with his/her former campaign manager. If the judge knows that the particular attorney was involved in the judge’s campaign along with the former campaign manager, he/she should disclose that fact as well. After disclosure, the judge should consider disqualifying him/herself in response to a meritorious argument. Opinion 03-64.

         The Committee concludes that this post-campaign disqualification rule is not limited to partners and associates of the former campaign manager, but may, in appropriate cases, apply to an attorney designated “of counsel” to the firm. The determining factor is whether there is a continuing counsel relationship between the “of counsel” attorney and the former campaign manager’s law firm. It is irrelevant whether the “of counsel” attorney has an on-going financial interest in the firm, or merely a retainer interest in occasional, discrete, separate cases. Opinions 05-124; 03-10.

         Here, although this individual does not share an on-going financial relationship with the firm, the permanent appearance of this individual’s name on the letterhead as “of counsel” does imply an on-going association with the firm. Therefore, the judge should similarly follow the disqualification guidelines as detailed above for partners and associates of the campaign manager’ s firm when this individual appears in court before the inquiring judge.