Joint Opinion 08-125, 08-147, 08-148 and 08-149

March 12, 2009

Digest:         A judicial candidate may permit his/her relatives to serve on his/her campaign committee and engage in fund-raising activities on his/her behalf.

Rules:          22 NYCRR 100.0(Q); 100.2; 100.2(A); 100.5; 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(2)(i); 100.5(A)(4)(a), (c); 100.5(A)(5); Opinions 07-135; 07-88; 07-64; 02-06; 98-99 (Vol. XVII); 87-27 (Vol. I); NY St Bar Assn Comm on Prof Ethics Opinion 289 (1973).

Opinion:

         Four candidates for elective judicial office ask whether they may permit their close relatives to undertake fund-raising activities on their behalf. In Inquiries 08-125 and 08-148, a candidate’s campaign committee is planning a fund-raising event, and the candidate asks whether his/her siblings or spouse – who are well-known in the community – may sign the invitation to the event. In Inquiry 08-149, the candidate asks whether his/her spouse may add a personal note to an invitation to the candidate’s fund-raiser. And, in Inquiry 08-147, the candidate asks whether his/her spouse may personally sponsor a fund-raising event on the candidate’s behalf.

         Judges must avoid impropriety and the appearance of impropriety in all their activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). In general, judges who are candidates for judicial office and non-judicial candidates for judicial office are prohibited from directly or indirectly engaging in any political activity except as otherwise provided by law and the Rules Governing Judicial Conduct (see 22 NYCRR 100.5).

         Judges who are candidates for judicial office and non-judicial candidates for judicial office are permitted to engage in certain political activities during their Window Period (see 22 NYCRR 100.0[Q]; 100.5[A][2]). However, even during their Window Period, all candidates for judicial office are prohibited from personally soliciting or accepting campaign contributions (see 22 NYCRR 100.5[A][1][h]; 100.5[A][2][i]; 100.5[A][5]). Therefore, the Committee previously has advised that judicial candidates should be shielded, to the extent possible, from learning the identity of campaign contributors and the amount or value of their contributions (see Opinions 02-06; 87-27 [Vol. I]; see also NY St Bar Assn Comm on Prof Ethics Op 289 [1973]; cf. Opinion 07-88).

         A candidate for judicial office also is prohibited from “authoriz[ing] or knowingly permit[ting] any person to do for the candidate what the candidate is prohibited from doing” politically (22 NYCRR 100.5[A][4][c]). Nevertheless, a candidate for judicial office is expressly authorized to establish a campaign committee of “responsible persons” to conduct his/her campaign and to “solicit and accept reasonable campaign contributions and support from the public” (see 22 NYCRR 100.5[A][5]). Thus, it is well-settled that a campaign committee may solicit and accept reasonable campaign contributions on a candidate’s behalf, even though the candidate him/herself cannot do so (see 22 NYCRR 100.5[A][4][c]; 100.5[A][5]; Opinion 07-135).

         However, the Committee has not previously considered the requirement that a judicial candidate “encourage members of [his/her] family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate” in the context of a family member functioning as a member of the candidate’s campaign committee (22 NYCRR 100.5[A][4][a]). This particular provision does not, on its face, include any exception which would preclude permitting a relative or family member to serve on the candidate’s campaign committee.

         Although neither section 100.5 nor section 100.5 (A)(4)(a) expressly permits it, in the Committee’s view, a judicial candidate may permit his/her relatives or family members to serve on his/her campaign committee as long as the judicial candidate determines that they are “responsible persons” who will abide by applicable laws and ethical rules (see 22 NYCRR 100.5[A][5]; cf. Opinion 07-64 [noting that a candidate must instruct his/her representative about the limitations on campaign speech and conduct that he/she should observe when acting on the candidate’s behalf]).

         As members of a candidate’s campaign committee, a candidate’s relatives “may solicit and accept reasonable campaign contributions and support from the public” (22 NYCRR 100.5[A][5]) as long as their actions do not appear to be the candidate’s indirect activity (see Opinion 98-99 [Vol. XVII]), and as long as such relatives are careful to keep the donors’ identities and the amount of any donation from the candidate.

         Accordingly, in the inquiries noted above, each judicial candidate’s spouse and/or siblings may sign an invitation to the candidate’s fund-raiser or add a personal note to such an invitation and may sponsor a fund-raiser for the judicial candidate.