Opinion 12-28

March 8, 2012

Digest:         Assuming a judge can be fair and impartial, the judge need not disqualify him/herself when a campaign advisor who was appointed by a county political committee to advise several candidates during a recent election, including the judge, appears before the judge as an attorney, where the advisor did not play an active, significant or pivotal role in the judge's campaign.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(E)(1); Opinions 07-26; 03-64; 02-108; 90-196 (Vol. VI); 90-182 (Vol. VI).

Opinion:

         A judge who was recently a candidate for judicial office states that his/her county political committee asked a practicing attorney to “assist with” the political campaigns of several judicial candidates on the party’s slate. The inquiring judge selected his/her own campaign manager and treasurer but also accepted the assistance from the party-appointed advisor. According to the judge, the advisor held “three or four meetings with the candidates” during the applicable window period and provided “suggestions for campaign appearances, handouts, and signage use.” The inquiring judge states that the party-appointed campaign advisor had no further involvement in the judge’s campaign and, thus, “d[id] not play a significant, pivotal role.” The judge asks whether he/she is disqualified from presiding over matters in which the former party-appointed advisor appears as an attorney.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must disqualify him/herself in any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has previously advised that whether a judge must exercise recusal when a previous supporter or contributor to the judge’s prior election campaigns appears before the judge “depends on the level of the supporter’s or contributor’s involvement in these campaigns” (Opinion 07-26).

         With respect to individuals who played “an active and significant role in the judge’s [election] campaign,” the Committee has advised judges to “disclose and in some cases disqualify themselves from presiding over matters” in which those individuals appear (see Opinion 02-108). Active and significant roles include those of “campaign manager, campaign coordinator, finance chair, or treasurer” (Opinion 02-108); other leadership position in the judge’s campaign; or a continuing fund-raising role in the campaign (see Opinion 03-64 [noting that disqualification is required for two years following the election]).

         In contrast, the Committee has advised that a judge need not disclose or disqualify him/herself from a matter in which an attorney who appears before the judge publicly supported the judge (see Opinion 90-182 [Vol. VI]) or minimally participated in the judge’s campaign by gathering petition signatures (see Opinion 90-196 [Vol. VI]) or distributing literature (see Opinion 90-196 [Vol. VI]) unless the judge doubts his/her own impartiality (see Opinion 07-26; 22 NYCRR 100.3[E][1]).

         Here, it appears that the party-appointed advisor had no active or significant role in the judge’s recently concluded election campaign, as the advisor undertook no fund-raising or leadership functions for the judge and, in fact, only met with the judge (together with several other candidates) a few times to provide advice. The Committee concludes that the judge’s impartiality cannot reasonably be questioned under the circumstances presented, and, therefore, the judge is not disqualified from presiding over matters in which the advisor appears as an attorney, provided that the judge believes he/she can be fair and impartial (see Opinion 07-26; 22 NYCRR 100.3[E][1]).