Opinion 22-93

June 30, 2022

Digest:    A candidate for elective judicial office may not provide free notary services to the public to promote their campaign.

Rules:     NY Const art VI, §20(b); Election Law § 17-142; Executive Law § 136; 22 NYCRR 100.5(A)(1)(c); 100.5(A)(2); 100.5(A)(4)(a); Opinions 22-11; 13-111; 98-97; 2007 Ann Rep of NY Commn on Jud Conduct at 127.

Opinion:

         A non-judge candidate for elective judicial office has been invited to participate as a notary public with other slate members in a proposed "community outreach / campaign event," which would be advertised as "Free Notary for a Day" or "Free Notary Service at [name of location]." At this event, candidates who have a notary stamp and seal would offer pro bono notary services to the community. The public would be invited to bring documents to the location for notarization while campaign staff and volunteers would hand out campaign literature to passers-by.

         A judge or non-judge seeking election to judicial office may personally participate in their own campaign during the applicable window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). For example, the candidate must "act in a manner consistent with the impartiality, integrity and independence of the judiciary" (22 NYCRR 100.5[A][4][a]).

         A judicial candidate may distribute promotional materials of no more than nominal value, such as pens, pencils, letter openers and the like, to support their candidacy (see Opinion 98-97). As "these items have campaign slogans imprinted on them" they are thus treated as campaign literature (id.). We note that notary services are themselves intangible and cannot be imprinted with campaign slogans.

         Conversely, giving "money or other valuable consideration" to prospective voters as an inducement to vote constitutes a crime (see Election Law § 17-142) and may be a basis for judicial discipline even without a finding of illegality (see 2007 Ann Rep of NY Commn on Jud Conduct at 127, 134 [finding that, as a candidate for town justice, respondent failed to abide by the high standards of conduct required of judicial candidates by giving away $5.00 coupons at a convenience store to prospective voters and buying drinks for patrons at a bar while identifying himself as a judicial candidate]).

         As a notary public in New York is entitled to charge $2.00 for each act/signature (see Executive Law § 136), we believe that providing this service for free may be perceived as a gift, favor, or benefit. In our view, providing this gift or favor to the public as part of a campaign event would create an appearance of impropriety under the Rules Governing Judicial Conduct, as it may be viewed as providing prospective voters with an inducement to vote for the participating candidates. Accordingly, a candidate for elective judicial office may not provide free notary services to the public to promote their campaign, even if they are otherwise authorized to serve as a notary public.¹

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¹ While the present candidate is a non-judge and thus not subject to this limitation, we note that a judge subject to Article VI, Section 20, of the New York Constitution may not serve as a notary public (compare Opinion 13-111 with Opinion 22-11).