Opinion 23-41

March 23, 2023

Digest:         A judge need not take any further action after being inadvertently exposed to a list of campaign contributors and should not investigate whether a prospective appointee was a campaign contributor.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(C)(3); 100.3(E)(1); 100.5(A)(1)(h); 100.5(A)(2); 100.5(A)(5); Opinions 22-130; 15-126; 10-135; 04-106; 02-06.

Opinion:

         A full-time judge who recently campaigned for election or re-election to judicial office inadvertently received a memo from the Office of Court Administration which contained a list of contributors to the judge’s campaign. The list of contributors is routinely sent to the court clerk’s office so that cases may be appropriately assigned to avoid any conflicts (see generally

 https://ww2.nycourts.gov/rules/chiefadmin/151-intro.shtml).

  Before the judge realized what the list was, the judge read the names of two attorneys who had contributed to his/her campaign. The judge plans to advise the clerk’s office of any cases before the judge involving these attorneys, but also asks (1) “is there anything else I must do” and (2) “since I appoint lawyers to serve on cases, how do I avoid appointing lawyers that contributed to my campaign as I only read two names on the list.”

        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]). In particular, a judge shall not allow family, social, political or other relationships to influence the judge’s judicial decision-making or judgment (see 22 NYCRR 100.2[B]). Further, a judge is disqualified in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]).

        While the judge is not requesting guidance on their now-completed judicial campaign, we briefly outline some relevant principles here for context. A judicial candidate may contribute to their own campaign as permitted under the Election Law (22 NYCRR 100.5[A][2]), but must not otherwise personally solicit or accept campaign contributions from any source (22 NYCRR 100.5[A][1][h]; 100.5[A][2]). Instead, a judge who wishes to accept any campaign contributions from others must form a committee of responsible persons to “solicit and accept reasonable campaign contributions and support” on the candidate’s behalf (22 NYCRR 100.5[A][5]).

        We have further advised that a judicial candidate should be shielded from knowing the identities of contributors and the amounts contributed (see Opinions 10-135; 02-06). Nevertheless, a judge running for election or re-election to judicial office need not disqualify in a matter solely because a party or attorney attended a campaign fund-raiser for the judge, or when the judge inadvertently learns of an attorney’s contribution “by virtue of a newspaper report of public filings of contributions” (Opinion 04-106). Similarly, we advised that a judge need not disqualify in a case solely because the judge learns from a party’s motion papers that some of the attorneys were contributors to the judge’s campaign (see Opinion 10-135).

        In Opinion 04-106, we noted that the judge’s knowledge that an attorney made a contribution “does not, standing alone, mandate the judge’s disqualification.” While mere knowledge of a contribution “does not automatically give rise to an inference of partiality,” we nonetheless advised that a judge who has acquired such knowledge should

consider various factors that may be of significance in reaching a conclusion about recusal. For example, what is the size of the contribution in relation to other contributions by attorneys? Was the case in which the attorney appears pending before the judge at the time the contribution was made? Is the appearance being made during the course of the campaign? Is the attorney’s adversary also listed as a contributor? Did the judge have prior knowledge that the attorney was a supporter (e.g. having been listed as such or having been in attendance at a fund-raiser) and therefore might likely have been thought to be a contributor in any event? (id.).

After considering these or other appropriate factors, “if the judge is confident he/she can be fair and impartial, no disqualification is required. If, on the other hand, in his/her discretion, and having considered all relevant factors, the judge concludes that the specific circumstances might give rise to a publicly perceived appearance of partiality,” the judge should “disclose and recuse, subject to remittal” (id.).

         Applying these principles here, we conclude the inquiring judge need not take further action due to the judge’s inadvertent exposure to the list of campaign contributors. Whether the judge should exercise recusal in matters involving the two attorneys whose names the judge saw listed as contributors is in the sole discretion of the judge, taking into consideration the factors set forth above.¹

         With respect to the judge’s second question, the judge should not investigate who has contributed to the judge’s campaign to determine whether or not further recusals are necessary or whether prospective appointees contributed to the judge’s campaign. Of course, if the judge has determined that disqualification is required in matters involving a particular attorney, the judge may not appoint that attorney in a case (see e.g. Opinions 22-130; 15-126). Otherwise, the judge may continue to appoint eligible attorneys to cases “impartially and on the basis of merit” (22 NYCRR 100.3[C][3]).

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¹ On the facts presented, it is possible that some of the factors suggested in Opinion 04-106 may be irrelevant and/or impossible to assess, given the judge’s extremely limited exposure to the list.