Opinion 23-124

October 26, 2023

Digest:  Judicial candidates may reimburse a political party their proportionate share of the reasonable attorneys’ fees actually incurred by the party in litigation related to their ballot status in a campaign.

Rules:   Election Law § 17-162; 22 NYCRR 100.5(A)(1)(c)-(d); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(5)-(6); Opinions 17-23; 14-167; 92-97.

Opinion:

          The four inquiring judicial candidates were selected as Supreme Court nominees at a political party’s nominating convention.  Thereafter, a lawsuit challenging their nominations named both the political party and the nominees as respondents.  The challenge was to “the method of nomination, the minutes of the convention that were filed, and alleged irregularities at the convention.”  The political party retained one attorney and the inquiring candidates jointly retained another attorney.  The attorneys “filed separate briefs, but clearly discussed and shared research and strategy, and addressed the same issues that affected [the inquirers’] ability to appear on the ballot.”  Eventually, the political party and the inquirers prevailed.  The political party is now asking the candidates’ campaign committees to “reimburse it for 25% of the legal fees that it incurred in defending the nominations.”  The inquirers believe that these expenses to “defend the results of the judicial convention” were “specifically related to [their] candidacy,” and in fact “a necessary expenditure” of their campaigns.  They ask if it is ethically permissible for each of them to reimburse the political party for 25% of the reasonable legal fees.

          A judge or non-judge candidate for elective judicial office may personally participate in their own campaign for judicial office during their window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]).  For example, a judicial candidate must not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c]-[d]); must not make a general payment or contribution to a political organization or candidate (see 22 NYCRR 100.5[A][1][h]; see also Election Law § 17-162); and must not use or permit the use of campaign funds for the private benefit of the candidate or others (see 22 NYCRR 100.5[A][5]).  A judicial candidate may not permit the use of personal or campaign funds to pay for campaign-related goods or services for which fair value was not received (see 22 NYCRR 100.5[A][6]).

          We have advised that a judicial candidate may reimburse a political organization for certain expenses it had incurred for campaign-related goods or services spent on the candidate’s behalf, provided the candidate “on a reasonable basis of fact believes that these expenses are reasonable and actual costs actually and proportionately relating to the candidate’s judicial campaign” (Opinion 92-97; accord e.g. Opinion 14-167 [judicial candidate ordinarily “has no affirmative duty to investigate the accuracy” of the statement of costs]). 

          Further, in Opinion 17-23, we advised that a judge whose window period had expired may keep their campaign account open “for the purpose of paying outstanding legal bills” incurred during the campaign, provided the judge and their campaign committee do not engage in any fund-raising or any other prohibited political activity.  The clear implication of Opinion 17-23 is that the Rules Governing Judicial Conduct do not foreclose payment of legal fees necessary to a judicial candidate’s campaign.

          Here, the inquiring judicial candidates propose to reimburse the political party for reasonable legal fees actually incurred in defending the challenge to their nominations.  We believe our precedents permit them to do so, provided they determine their campaign received fair value for the expenditure and pay no more than their proportionate share (here, 25%).  The reimbursed fees  should include only the actual legal fees and disbursements during the litigation.