Opinion 16-64

May 5, 2016

Digest:         (1) A judge ordinarily may preside in matters involving an attorney who is the chair of a political committee on which the judge’s court attorney serves. (2) The judge need not insulate the court attorney or disclose the relationship when the town committee chair appears as an attorney, where committee membership is the only connection between the two attorneys, the proceeding does not involve the committee or related political issues, and the judge is satisfied that the court attorney can be objective.

Rules:          22 NYCRR 50.5; 50.5(e); 100.2; 100.2(A); 100.3(C)(2); 100.3(E)(1); 100.5(C)(1), (4); Opinions 13-78; 13-26; 12-71; 11-125; 07-126; 07-11; 01-35; 00-108; 99-95; 90-102.

Opinion:

         A full-time judge asks if insulation, disclosure, or disqualification is required solely if an attorney appearing before the judge is chair of a town political committee and the judge’s principal law clerk¹ is a committee member. The law clerk and committee chair have no other “personal or social relationship.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must require staff to observe standards of fidelity and diligence applicable to the judge and refrain from manifesting bias or prejudice in the performance of their official duties (see 22 NYCRR 100.3[C][2]) and must disqualify him/herself in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

         Also, a judge must prohibit his/her staff members who are the judge’s personal appointees from certain political activities (22 NYCRR 100.5[C]), including, for example:

(1) holding an elective office in a political organization, except as a delegate to a judicial nominating convention or a member of a county committee other than the executive committee of a county committee; ...

(4) political conduct prohibited by section 50.5 of the Rules of the Chief Judge (22 NYCRR 50.5).²

         Preliminarily, the Committee will take the opportunity to restate a few general principles. A judge may permit his/her personal appointee to serve on a town political committee, provided it is actually a subcommittee of the county committee, and further provided the court attorney is not on the executive committee thereof (see Opinions 00-108; 99-95). In addition, the judge should advise the court attorney “to refrain from any political activities likely to implicate the judge in politics … or give the impression that the judge is engaging in prohibited political activities through” him/her, and “to make every reasonable effort to make it clear that [his/her] political activities have nothing to do with the judge” (Opinions 00-108; 12-71). As always, the court attorney must not conduct any political activity in the courthouse, or in chambers, or during normal working hours (see Opinions 90-102; 12-71). Conversely, if the town political committee is not organized as a subcommittee of the county committee, and if committee membership is an elective office, the judge may not permit the court attorney to serve (see Opinion 00-108).³

         While this inquiry appears to be a matter of first impression for the Committee, it is easily answered. A judge need not disqualify him/herself solely because an attorney appearing before the judge is related to the judge’s personal appointee within the fourth degree of relationship or is representing the appointee on another legal matter (see e.g. Opinion 13-26). Accordingly, the judge is not disqualified where, as here, the connection is even more remote. In the Committee’s view, a judge’s impartiality cannot “reasonably be questioned” as to an attorney solely because that attorney chairs a political committee on which the judge’s court attorney also serves (22 NYCRR 100.3[E][1]).

         The remaining question is if the court attorney must be insulated from matters involving the town committee chair. As described, this relationship appears to be an “acquaintance” level relationship (see Opinion 11-125), because they have no personal or social contact outside the town political committee meetings. Indeed, our Committee has advised that a law clerk’s political opposition to the district attorney in an upcoming election does not necessarily require disclosure or insulation of the law clerk from the district attorney’s cases, as long as the judge is satisfied the law clerk can remain objective (see Opinions 07-11; 13-78). Likewise, even where a judge and his/her staff serve together on a bar committee, the judge need not disclose it when another committee member appears as counsel (see Opinion 07-126).

         Absent unusual circumstances, the Committee sees no need to insulate or disclose simply if a lawyer appearing before a judge chairs a political committee where the law clerk serves. Thus, he/she need not insulate the law clerk or disclose the relationship if the town chair appears as counsel, where committee membership is the only connection between the two lawyers, the proceeding does not involve the committee or its political issues, and the judge is satisfied the law clerk can be objective.

         If the political committee appears or is otherwise involved in a case before the judge, or if particular circumstances may create a perception the chair has special power or influence over the court attorney, then the judge may wish to consult the Committee on whether disclosure and/or insulation is required under those specific facts (see e.g. Opinion 01-35 [regarding a law clerk’s serving on a town council]).

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         ¹ The Committee presumes the court attorney is the judge’s personal appointee.

         ² Among other things, Part 50 contains the same ban on holding elective office in a political organization (see 22 NYCRR 50.5[e]).

         ³ Individuals recruited for such positions sometimes receive an erroneous impression that a particular political office is an appointive one, when in fact it will be filled by a low-profile, uncontested election. Nonjudicial court personnel may consult the Office of Court Administration for guidance on these and other ethics issues (Contact: ETHICS HELPLINE: 1-888-28ETHIC).