Opinion 23-99
September 7, 2023
Digest: On these facts, as candidates for a non-judicial office have made the judge’s ethical obligations an issue in their election campaign and any attempt by the judge to correct the record will be readily perceived as partisan political activity, the judge must abstain from direct or indirect public comment on the situation.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); 100.5(A)(1)(e); 100.5(A)(4)(e).
Opinion:
The inquiring judge is currently required to disqualify from matters involving Attorney A for a set period; thereafter, recusal will be in the judge’s discretion. Meanwhile, Attorney A is running against Attorney B for the position of District Attorney, and both candidates are attempting to make the judge’s disqualification obligations an issue in the campaign. In essence, the candidates offer differing views of the judge’s ability to handle criminal matters if Attorney A becomes the District Attorney. The judge is concerned that the candidates are “improperly and falsely implying [the judge’s] support” and providing misleading information about the underlying facts as well as whether the judge must or will disqualify in certain matters. The judge asks if it is ethically permissible to “publicly address” the situation, either directly or through an intermediary, to correct the record. It appears the judge wishes to comment publicly on topics such as the extent of the judge’s mandatory disqualification obligations, the judge’s present intentions concerning discretionary recusal in the future, and the status of the judge’s relationship with the candidates.
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 must not lend the prestige of judicial office to advance any private interests and shall not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). A sitting judge must not “directly or indirectly engage in any political activity,” subject to exceptions inapplicable here (22 NYCRR 100.5[A][1]).[1] Prohibited political activity includes “engaging in any partisan political activity” (22 NYCRR 100.5[A][1][c]) and “publicly endorsing or publicly opposing” a “candidate for public office” (22 NYCRR 100.5[A][1][e]).
On the facts presented, we conclude that any attempt by the judge to correct the record concerning the judge’s ethical obligations and/or relationship with the candidates will be readily perceived as partisan involvement in the campaign for District Attorney, whether framed as endorsement of one candidate’s claims or as rejection of the other candidate’s claims. It would be difficult, if not impossible, for the judge to publicly address any of the identified issues concerning the campaign for District Attorney without creating, at the very least, an appearance that the judge is engaging in impermissible political activity. Accordingly, each of the judge’s questions must be answered in the negative, as we conclude that the judge must abstain from public comment on the situation, either directly or through an intermediary.
[1] The rule permitting a judicial candidate to “respond to personal attacks or attacks on the candidate’s record” (22 NYCRR 100.5[A][4][e]) is inapplicable, because the inquiring judge is not in their window period for election or re-election to judicial office.