Opinion 23-227

March 14, 2024

Digest:  A part-time attorney judge who is a partner in a law firm where the majority of partners are non-judges and the non-judge partners have established a political action committee in the law firm’s name funded solely by voluntary contributions of individual partners, (1) must not contribute to the PAC, (2) must not participate in the PAC’s operations or decision-making, and (3) must advise the law firm in writing of these limitations.  If the judge is satisfied that the law firm will honor these limitations, the judge need not resign from the law firm.

Rules:   22 NYCRR 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(1)(h); Opinions 10-143; 96-94; 96-29; 89-55; 88-56; 2024 Ann Rep of NY Commn on Jud Conduct at 29.

Opinion:

          The inquiring part-time attorney judge is an equity partner in a law firm, where the majority of partners are not judges.  The law firm has a political action committee (PAC) “which is a separate entity from the partnership itself.”  Contributions to the PAC are made on a voluntary basis by attorneys at the firm who choose to contribute; it is not funded by a percentage of firm profits.  From the funds received, the PAC makes political contributions as determined solely by three non-judge partners at the firm who are part of the management team.  Other attorneys, including the inquiring judge, have no input into how the PAC spends its money.  The judge understands that he/she cannot vote or participate in those decisions, make any contributions to the PAC, or attend any political events.  The judge has already advised the firm that he/she cannot “contribute to the PAC or be involved in any way with the PAC.”  The judge is “a ‘minority owner’ partner” with “no ability to prevent my partners from making contributions and/or how the firm’s PAC makes the contributions.”  The judge asks if he/she may continue to be a partner of the law firm, given these facts.  If not, the judge asks whether it is permissible to remain affiliated with the law firm in some other capacity, such as a salaried senior counsel.

          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 “directly or indirectly engage in any political activity,” unless an exception applies (22 NYCRR 100.5[A][1]).  As relevant here, the rules expressly prohibit a judge from “making a contribution to a political organization or candidate” (22 NYCRR 100.5[A][1][h]; cf. 2024 Ann Rep of NY Commn on Jud Conduct at 29 [noting that the prohibition “applies to all campaigns, anywhere,” regardless of amount]).

          Clearly, a judge may not contribute to a PAC established by the judge’s employer (see Opinion 89-55).  We noted that it is “irrelevant” that the judge has no control over the contributions of the PAC (id.). 

          We have advised that “a law firm may not contribute to a political campaign in its name, if its membership includes a partner or associate who is also a part-time local court judge” (Opinion 96-94).  We said that when a law firm makes a political donation, “it is correctly presumed that a percentage of the donation comes from the judge” (Opinion 88-56 [emphasis added]).  We further reasoned that “such donations give the clear appearance that the judge has endorsed the donee’s candidacy” (id.).  Relatedly, we have also advised that a part-time judge’s law firm’s checking account “should not be used to make political contributions even where the judge is not the signatory on the check,” because a judge “cannot do indirectly that which is forbidden explicitly” (Opinion 96-29). 

          More recently, in Opinion 10-143, we considered an inquiry from a part-time attorney judge whose law firm partners wanted to place a political sign on their jointly owned property, notwithstanding the judge’s objections.  We advised that, because the judge owned only “a minority interest in the law firm’s property,” the judge “should take every reasonable step to notify [their] partners in an effort to persuade them not to erect a political sign on the law firm property” (id.).  In essence, we looked to the judge’s objections and non-participation as sufficient under the circumstances.  Significantly, we did not purport to forbid the law firm from erecting the sign due to the risk of a “clear appearance that the judge has endorsed” the candidate named in the political sign (cf. Opinion 88-56), nor did we suggest that the judge must resign from the law firm if the judge’s “effort to persuade” the majority partners was unsuccessful.

          In the present inquiry, the law firm or its management team has established a PAC as a separate legal entity to engage in political activity.  Although the PAC’s name refers to the law firm, it is not funded by a share of the law firm’s profits and it is not controlled by the law firm’s equity partners.  Rather, the PAC is funded by voluntary contributions from whichever attorneys wish to participate, and it is controlled exclusively by members of the law firm’s management team.  We note that where, as here, the majority of partners in a law firm are non-judges, it is impossible for the part-time attorney judge(s) in the firm to prevent the formation or require the dissolution of the PAC.  On these facts, we conclude that it may be possible for this judge to distance himself/herself from the law firm’s PAC to avoid “directly or indirectly” engaging in impermissible political activity (22 NYCRR 100.5[A][1]).  Specifically, the judge (1) must not contribute to the PAC, (2) must not participate in the PAC’s operations or decision-making, and (3) must advise the law firm in writing of these limitations.  If the judge is satisfied that the law firm will honor these limitations, the judge may remain an equity partner of the firm. 

          Opinions 88-56, 96-29, and 96-94 are hereby modified to reflect that, where a majority of partners in a law firm are non-judges, the obligation of a judge who is a partner or associate in the law firm is to urge the partners in writing not to make political contributions in the law firm’s name out of the law firm’s profits.  The judge may direct the partners’ attention to the present opinion as a path that will allow the firm to engage in political activity through a PAC that will completely exclude the judge.