Opinion 95-28

March 9, 1995

Digest:         There is no ethical bar which prohibits a full-time judge from contacting the Governor directly, or in response to a request from him, relative to the fitness of a particular candidate for appointment as District Attorney.

Rules:          22 NYCRR 100.4(b); Advisory Committee on Judicial Ethics, Vol. XI, Opinion 93-22

Opinion:

         A full-time judge wants to know what role he/she may play relative to a pending gubernatorial appointment filling the now vacant office of District Attorney in the judge’s county. Specifically, the judge is concerned with the credentials of a reported potential candidate for that office, who has been removed from judicial office for misconduct.

         The judge asks if on his/her own initiative the judge may contact the Governor’s office and make known the judge’s concerns about the individual in question. In addition, the judge seeks guidance on the permissibility of a response to a request by the Governor’s office, should such request be made, for information concerning such appointment.

         In our opinion there is no ethical prohibition against the judge, on the facts presented, contacting the Governor directly, or in response to a request from him, concerning the fitness of a candidate for appointment as District Attorney.

         A judge may ... “consult with an executive or legislative body or official, but only on matters concerning this administration of justice” (22 NYCRR Sec. 100.4[b]).

         This Committee concludes that the fitness of a person for appointment by the Governor to the office of District Attorney is a “matter concerning the administration of justice”. As we wrote on a previous occasion, “However, we caution that a judge may gratuitously convey only factual information . . . . . , lest it otherwise appear the judge is engaging in public political comment about . . . selections of the executive branch”. (Vol. XI, Opinion 93-22.)