Opinion 22-149

October 27, 2022

Digest:         A judicial candidate, if elected, may appoint their campaign treasurer as their principal law clerk, provided that (1) any remaining duties of the treasurer are strictly ministerial and the treasurer is no longer involved in political fund-raising or other prohibited political activity at the time of the appointment and (2) the appointment is based on merit.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.5(C)(1)-(4); Opinions 21-181; 19-19; 15-132; 12-71; 07-04; 03-48.

Opinion:

         A non-judge candidate for elective judicial office asks, if elected, whether they may appoint their current campaign treasurer as their principal law clerk. The treasurer is an attorney the candidate has known and trusted since law school.

         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]). A judge may not make unnecessary appointments and must “exercise the power of appointment impartially and on the basis of merit” (see 22 NYCRR 100.3[C][3]). A judge should also “avoid nepotism and favoritism” (id.). Therefore, a judge must not allow family, social, political, or other relationships to influence a judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]).

         In addition, a judge must prohibit their personal appointees, such as a principal law clerk, from engaging in specified political activities (see 22 NYCRR 100.5[C][1]-[4]; Opinion 12-71):

(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;

(2) contributing, directly or indirectly, money or other valuable consideration in amounts exceeding $500 in the aggregate during any calendar year to all political campaigns for political office, and other partisan political activity including, but not limited to, the purchasing of tickets to political functions...;

(3) personally soliciting funds in connection with a partisan political purpose, or personally selling tickets to or promoting a fund-raising activity of a political candidate, political party, or partisan political club; or

(4) political conduct prohibited by section 50.5 of the Rules of the Chief Judge.¹

In interpreting Section 100.5(C)(3)’s prohibitions on political fund-raising, we have advised that a law clerk who is a judge’s personal appointee may not act as treasurer for a political candidate’s campaign (see Opinion 03-48). We explained that “the functions of a treasurer for a political candidate’s campaign are so closely related to the solicitation of funds on behalf of the candidate that it is unlikely the law clerk can avoid involvement in the activities prohibited by section 100.5(C)(3)” (id.).

         Unlike the scenario addressed in Opinion 03-48, however, we anticipate that, at the time of the proposed appointment, the newly-elected judge will no longer be soliciting funds, but will instead be winding down their campaign and preparing to dispose of any remaining campaign funds consistent with the Rules and our prior opinions. Under those circumstances, we believe it may be possible for a campaign treasurer to avoid even the appearance of involvement in the activities prohibited by Section 100.5(C)(3).

         As we have observed, the relationship “between a judge and his/her law clerk is one of particular trust and confidence” (see e.g. Opinion 07-04). The candidate’s long-standing relationship of trust with the attorney who currently serves as their campaign treasurer further suggests that the candidate is in a position to assess that individual’s qualifications and overall suitability for the position of law clerk (cf. Opinions 21-181 [“If, as the inquiry suggests, the judge has determined this applicant is highly qualified and is the best suited for the position, we see no ethical objection to the appointment.”]; 15-132 [no appearance of impropriety in appointing as secretary an individual the judge “knows and trusts” and has found “abundantly qualified and competent”]).

         Accordingly, if elected, the candidate may appoint their current campaign treasurer to serve as their personally appointed principal law clerk, provided the appointment is based on merit. To the extent necessary after accepting the appointment, the law clerk may discharge the last few purely ministerial functions as campaign treasurer during the candidate’s remaining post-election window period, such as ensuring that financial filing obligations are met. However, the judge must require their new law clerk to cease any involvement in political fund-raising or other impermissible political activity. We note this may require the law clerk to resign as campaign treasurer upon acceptance of the appointment, if the treasurer’s remaining duties are more than ministerial or if fund-raising activities are expected to continue.²

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¹ Section 50.5 “contains four subsections which cover (a) recommendations based on political affiliations; (b) inquiry concerning political affiliations; (c) political assessment; (d) prohibition against promise of influence” (Opinion 12-71 [citations omitted]).

² We note there are strict limits on post-election fund-raising (see Opinion 19-19).