Opinion 09-165

December 3, 2009

Digest:         (1) A Judicial Hearing Officer is prohibited from serving either as chair or counsel to an Ethics Committee for a political party. (2) A Judicial Hearing Officer who is only considering a run for political or public office, but is not yet an announced candidate in his/her Window Period may not attend political events. (3) As a private attorney, a Judicial Hearing Officer may give legal and/or ethical advice to public officers, party officials and/or political party members so long as (A) he/she is formally retained so that an attorney-client relationship exists; (B) his/her actions are clearly identifiable as those of an attorney representing a client, and not as partisan political activity; and (C) he/she is fairly compensated for his/her legal services.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5; 100.5(A)(1)(i) - (iii); 100.5(A)(1)(a), (c),(g), (h); 100.5(A)(2); 100.5(A)(2)(i), (iii), (v); 100.6(A); 122.10; Opinions 08-42; 02-68; 01-109; 00-117 (Vol. XIX); 96-29 (Vol. XIV); 91-68 (Vol. VII).

Opinion:

         A Judicial Hearing Officer (JHO) asks several questions about engaging in political activities and about the private practice of law: May a JHO (1) serve as chair of, or counsel to an Ethics Committee for a political party; (2) attend political events while considering a run for political or public office; and (3) as a private attorney, give legal and/or ethical advice to public officers, party officials and/or political party members?

         JHOs must comply with the Rules Governing Judicial Conduct in the performance of their judicial functions and, so far as practical and appropriate, use such Rules as a guide to their conduct (see 22 NYCRR 100.6[A]; Opinion 01-109; 00-117 [Vol. XIX]). Therefore, JHOs must avoid impropriety and the appearance of impropriety in all their activities (see 22 NYCRR 100.2), and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, JHOs are prohibited from engaging either directly or indirectly in any political activity except as otherwise authorized by 22 NYCRR 100.5 or by law; to vote and to identify themselves as a member of a political party; and on behalf of measures to improve the law, the legal system or the administration of justice (see 22 NYCRR 100.5[A][1][i] - [iii]). In particular, a JHO is prohibited from acting as a leader or holding office in a political organization (see 22 NYCRR 100.5[A][1][a]); from engaging in any partisan political activity (see 22 NYCRR 100.5[A][1][c]); and from attending political gatherings (see 22 NYCRR 100.5[A][1][g]). However, a JHO who is a candidate for public election to judicial office during his/her Window Period may engage in certain permissible political activities, including attending political gatherings and politically sponsored dinners and other functions (see 22 NYCRR 100.5[A][2]; 100.5[A][2][i], [iii], [v]).

         Therefore, because a JHO is prohibited from acting as a leader or holding an office in a political organization, the inquirer is prohibited from serving either as Chair of or counsel to a political party’s Ethics Committee (see 22 NYCRR 100.5[A][1][a]; see also Opinion 96-29 [Vol. XIV] [part-time judge must resign from positions held in a political party]). Also, as the inquirer has not indicated that he/she presently is a candidate for public election to judicial office, he/she is prohibited from attending political events (see 22 NYCRR 100.5[A][2]; 100.5[A][2][i], [iii], [v]).

         Subject to the limitations set forth in 22 NYCRR 122.10, a JHO is permitted to practice law. With respect to practicing law, the inquirer asks whether he/she may give legal and/or ethical advice to public officers, party officials and/or political party members. The Committee previously has advised that a part-time village justice may serve as counsel of record for a candidate for election to public office only if the justice can avoid involvement in any aspect of the candidate’s political campaign, and he/she is fairly compensated for any services provided (see Opinion 02-68; see also 22 NYCRR 100.5[A][1][h]; Opinion 91-68 [Vol. VII]). Similarly, in Opinion 08-42, the Committee advised that 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 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. The latter qualification is important to avoid the perception that the lawyer judge or non-judge candidate for election to judicial office is making an improper contribution to the political party or candidate (see Opinion 02-68; see also 22 NYCRR 100.5[A][1][h]; Opinion 91-68 [Vol. VII]).

         Therefore, as a private attorney, the inquiring JHO also may give legal and/or ethical advice to public officers, party officials and/or political party members subject to the same qualifications delineated in Opinion 91-68 (Vol. VII).