March 19, 2020
Digest: A part-time non-attorney judge may continue employment in a law firm while an attorney colleague is seeking election to public office, provided the judge is not directly or indirectly involved in the attorney’s political campaign and is insulated from matters that either are, or appear to be, of a political nature.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.5(A)(1); Opinion 05-63.
The inquiring part-time non-attorney judge also works part-time as a legal secretary for a law firm that does not appear in his/her court. An attorney at the firm plans to seek the nomination for District Attorney. The judge is concerned about a possible appearance of impropriety if he/she continues to work as a legal secretary while an attorney colleague gathers petition signatures and campaigns for election and, if successful, appears on the ballot for the primary and general elections. Accordingly, the judge asks for guidance on his/her ethical obligations.
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]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (22 NYCRR 100.5[A]). Further, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
This appears to be a matter of first impression. The judge’s core concern, as explained to us, is that merely continuing to work as secretary to the law firm - without more - could potentially give rise to a public perception that the judge supports his/her attorney colleague’s candidacy or is lending the prestige of judicial status to further the colleague’s political campaign.
Of course, the judge must have absolutely no involvement in the attorney’s political campaign, either directly or indirectly (see 22 NYCRR 100.5[A]). But we believe that mere employment in a law firm in which one of the attorneys is seeking election to public office does not, as a matter of judicial ethics, create an appearance that the judge personally supports that attorney’s candidacy or is involved in that attorney’s campaign or otherwise disqualify the judge from performing his/her judicial responsibilities (cf. Opinion 05-63 [an acting judge who is appointed by the mayor may continue in private practice with another attorney employed as an associate while that attorney seeks the office of mayor, but if that attorney is elected, they must sever their professional connection]). Accordingly, the judge may continue to work as a legal secretary for the law firm throughout the attorney’s campaign, provided the judge is not directly or indirectly involved in the political campaign and is insulated from matters that either are, or reasonably appear to be, of a political nature.