Opinion 10-117

September 16, 2010

Digest:         A judge may not sign a roster of attorneys supporting a particular candidate for judicial office and may not express an opinion to “members of the bar” or “members of the public” about the qualifications of a judicial candidate.

Rules:          22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(e); Opinions 09-176; 05-117; 03-06; 01-99 (Vol. XX); 99-117 (Vol. XVIII); 91-113 (Vol. VIII); 91-94 (Vol. VIII).

Opinion:

         A part-time lawyer judge who also maintains an active law practice states that he/she has appeared before a full-time judge who currently is seeking election to judicial office and has formed an opinion about that candidate’s competence both with respect to the candidate’s knowledge of the law and judicial temperament. The judge asks whether he/she may express his/her opinion about the candidate, “[i]n my capacity as an attorney,” to other members of the bar or to acquaintances. The judge also asks whether he/she may be included on a roster of attorneys who support one of the two candidates in that judicial race.

         Judges must always avoid impropriety and its appearance (see 22 NYCRR 100.2) and must always act in a manner to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Judges must not “directly or indirectly engage in any political activity” except as authorized by Section 100.5 of the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). At all times, sitting judges are expressly prohibited from publicly endorsing or publicly opposing (other than by running against) a candidate for judicial office (see 22 NYCRR 100.5[A][1][e]). Therefore, the inquiring judge may not directly endorse a particular candidate for judicial office by signing or joining a roster of lawyers who support that candidate (see 22 NYCRR 100.5[A][1][e]).

         In prior opinions, the Committee has advised that a judicial candidate also may not indirectly endorse another candidate for judicial office (see Opinions 09-176 [judicial candidates may not send a letter with joint letterhead and joint signatures, setting forth both candidates’ qualifications, because that “would constitute an impermissible indirect endorsement by each candidate of the other”]; 05-117 [non-judge candidate may not indirectly endorse incumbent who is seeking re-election by stating in campaign materials that he/she is unanimous choice to join incumbent on the bench]; 03-06 [judicial candidates may not participate in each other’s campaigns by forming a single campaign committee]; 99-117 [Vol. XVIII] [judicial candidates may not indirectly endorse each other by “pooling” their judicial experience and advertising their combined years of judicial experience]). This Committee also previously advised that publicly commenting on another candidate’s qualifications is tantamount to publicly endorsing or opposing the candidate (see Opinions 01-99 [Vol. XX] [noting that at joint fund-raiser, “neither candidate may comment on the qualifications of or endorse the other,” quoting 91-113 [Vol. VIII]; 91-94 [Vol. VIII] [judicial candidate may campaign door-to-door with other candidates, but “should not endorse or comment on the qualifications of the other candidates”]). Here, too, publicly expressing an opinion to members of the bar and the public regarding a candidate’s knowledge of the law and judicial temperament is tantamount to publicly endorsing or opposing the candidate and thereby indirectly engaging in prohibited political activity (see id.).

         The Committee notes that, under the circumstances presented, the proposed statements, even if purportedly made in the judge’s capacity as an attorney, would be indistinguishable from conduct engaged in by the judge in his/her official capacity.