Opinion 17-26

March 16, 2017

Digest:         A newly-elected judge may preside in matters involving an attorney who participated in the absentee ballot review process following the general election, provided the attorney had no other involvement in the judge’s campaign and did not advocate on the judge’s behalf during the absentee ballot review process.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinion 05-115; People v Moreno, 70 NY2d 403 (1987).

Opinion: 

         A newly-elected judge asks about his/her ethical obligations concerning an attorney who assisted the judge in reviewing the absentee ballots for the general election.¹ The judge did not retain the attorney as counsel or seek legal advice from him/her, and the attorney did not otherwise serve on the judge’s campaign committee or represent the judge. Thus, the attorney’s only involvement in the campaign was to review absentee ballots on approximately eight occasions over a six-week period. The attorney did not advocate on the judge’s behalf and was not copied on any communications between the judge and the Board of Elections.

         A judge must always avoid even the appearance of impropriety (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]). Thus, a judge must not allow social or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must disqualify him/herself in a proceeding where his/her impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]) and when required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14). Conversely, where disqualification is not mandatory, the judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]).

         In Opinion 05-115, a recently elected judge asked if he/she could appoint as fiduciaries certain attorneys who were present, at the request of a political party chair, when the absentee ballots were opened at the Board of Elections. The Committee opined that if the attorneys “were actively involved in advocating” for the judge, the judge must not appoint them or members of their law firms as fiduciaries under Part 36 for two years following the election (see Opinion 05-115). Conversely, if the attorneys “were merely present and did not advocate on [the judge’s] behalf with respect to the ballots,” then it would be ethically permissible to appoint them as fiduciaries in matters where they are otherwise qualified for the appointment (see id.).

         Here, the attorney participated as one of several individuals in reviewing the absentee ballot count and had no other role in the campaign. Accordingly, the judge’s obligations hinge on whether the attorney who reviewed the absentee ballots advocated on the judge’s behalf (see Opinion 05-115). As described, there is no indication the attorney engaged in any such advocacy, and the attorney did not otherwise act as the judge’s agent or legal representative. On those facts, there is no reasonable basis to question the judge’s impartiality when the attorney appears. Therefore, assuming the judge can be fair and impartial, he/she need not disclose the relationship or disqualify him/herself when the attorney appears.

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         ¹ Others who assisted in the ballot-counting process included the judge’s legal counsel and at least one non-attorney.