Opinion 10-83

June 10, 2010

Digest:         (1) A judge may not participate in a candidate’s campaign for legislative office, even if the judge agrees with the candidate’s position on judicial raises. (2) A judge may, but is not required to, adopt a policy that all in-court negotiations and discussions between counsel and self-represented persons must take place in the judge’s or a court attorney’s presence.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.2(A); 100.3; 100.5(A)(1); 100.5(A)(1)(c)-(e); 100.5(A)(2); Opinions 09-148; 99-148 (Vol. XVIII); 91-39 (Vol. VII).

Opinion:

         A judge asks whether he/she may support candidates for legislative office who share his/her views on judicial raises “by assisting [those candidates] with their nominating petitions.” The judge explains that he/she would like to organize petition routes, supervise the petitioning process, carry petitions, recruit people to carry petitions, and organize with other judges to assist in the petitioning process in any way that is permitted.

         The Rules Governing Judicial Conduct prohibit judges from engaging in partisan political activity except in connection with the judge’s own campaign for election to judicial office (see 22 NYCRR 100.5[A][1]-[2]). Judges are specifically prohibited from “participating in any political campaign for any office” other than their own (see 22 NYCRR 100.5[A][1][d]). Participation in another candidate’s petitioning process would constitute participating in that candidate’s political campaign and is, therefore, prohibited (see id.). Moreover, in the Committee’s view, circulating the individual nominating or designating petition of another candidate is also tantamount to an endorsement of that person and is, therefore, also prohibited on this basis (see Opinion 09-148 [adhering to prior decisions]; 22 NYCRR 100.5[A][1][e]). In light of these rules and opinions, judges may not participate in legislative candidates’ campaigns by assisting in their petition drives in any capacity (see 22 NYCRR 100.5[A][1][c]-[e]).¹

         The judge also states that he/she hears many matters in which one side is self-represented, and that the judge “has witnessed, almost on a daily basis, abuse and overreaching” by counsel in such matters. The judge asks whether he/she may adopt a policy that all in-court negotiations and discussions between counsel and self-represented persons must take place in the presence of a judge or court attorney.

         A judge must respect and comply with the law (see 22 NYCRR 100.2[A]) and perform the duties of judicial office impartially (see 22 NYCRR 100.3). In the Committee’s view, the Rules neither prohibit nor require the judge to adopt the proposed policy. However, the judge should review and consider the Committee’s prior opinions regarding settlement conferences and negotiations before deciding to implement the proposed policy (see e.g. Opinions 99-148 [Vol. XVIII]; 91-39 [Vol. VII]).

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      ¹Of course, if a particular judge is a judicial candidate within his/her window period (see 22 NYCRR 100.0[A]; 100.0[Q]), that judge may circulate a joint nominating or designating petition that includes his/her own name as a nominee or designee along with the names of other candidates (see Opinion 09-148).