Opinion 25-50
March 27, 2025
Digest: (1) A judge need not resign as an officer or member of a bar association merely because the association circulated and subsequently retracted an email announcing a judicial candidate’s campaign fund-raising event.
(2) A judge need not investigate potential misconduct. Where, as here, the judge lacks direct personal knowledge of any potential misconduct by a judicial candidate, he/she is not ethically obligated to report the judicial candidate to a disciplinary authority.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(D)(2); 100.4(A)(1)-(3); 100.5(A)(1); 100.5(A)(1)(d)-(e), (h); 100.5(A)(5); 22 NYCRR 1200, Rule 8.2(b); Opinions 23-239; 22-142; 22-84; 22-64; 22-61; 20-201; 20-190; 17-59; 16-110; 16-79; 15-229; 15-138/15-144/15-166; 15-19; 96-49; 88-100.
Opinion:
The inquiring judge received a bar association email which announced another member’s judicial campaign fund-raising event. As an officer and member of the bar association, the judge promptly objected to the email in writing. The sender ultimately sent out another email to the membership with an apology and retraction, along with a clarification that “announcements of candidates for public office” are “not permitted nor endorsed by the chapter.” The judge now asks if he/she must resign from the bar association. Further, as the sender apparently “was ‘asked’ to circulate the campaign announcement,” the judge asks if he/she must inquire as to the identity of this person and, if it turns out to be the judicial candidate, whether the judge has an obligation to report the conduct to a disciplinary authority.[1]
A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]). Thus, a judge’s extra-judicial activities must be compatible with judicial office and must not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]), and thus must not solicit funds for a “political organization or candidate” (22 NYCRR 100.5[A][1][h]), publicly endorse any candidate (see 22 NYCRR 100.5[A][1][e]), or otherwise participate in any political campaign for any office or permit his/her name to be used in connection with any activity of a political organization (see 22 NYCRR 100.5[A][1][d]). Moreover, a judge who receives information indicating a “substantial likelihood” that a lawyer has committed a “substantial violation” of the Rules of Professional Conduct must “take appropriate action” (22 NYCRR 100.3[D][2]).
Bar Association Membership
In general, a judge’s participation in bar associations “is to be encouraged” (Opinion 22-142 [citation omitted]). Indeed, a judge may serve on a bar association’s board of directors, “even if another board member is a judicial candidate and the subject of unfavorable media attention concerning allegations of illegal drug use and dishonesty” (id.).
Of course, a judge must nonetheless “refrain from engaging in any partisan political activity” (Opinion 15-229; see also e.g. Opinions 96-49; 88-100). We appreciate this judge’s concern that the bar association’s circulation of a judicial candidate’s fund-raising announcement might create an impression that the judge, as an officer of the bar association, was endorsing the candidate or promoting the fund-raiser. However, this judge did not in fact send or authorize the email or otherwise personally participate in any political activity. Instead, on learning that another officer had circulated a political fund-raising announcement in the bar association’s name and from the bar association’s email account without the judge’s knowledge or consent, the judge immediately objected in writing. We have said a judge who objects in writing to an unauthorized use of the judge’s name or image need not take further action (see e.g. Opinions 22-84; 22-61; 20-190; 17-59; 15-19). Given that the sender circulated an apology and retraction, and affirmed that the bar association will not circulate candidate announcements in future, we can see no appearance of impropriety in the judge’s continued affiliation with the bar association.
On these facts, we conclude the judge need not resign from the bar association, and may remain as a member and/or officer.
Reporting Obligations
It is well-established that a judge “is under no ethical obligation to investigate whether allegations of misconduct are true” and thus may discharge his/her disciplinary responsibilities, if any, “based on those facts already known to the judge without further inquiry” (Opinion 22-64; see also Opinion 23-239).
Here, the inquiring judge speculates that the judicial candidate may have personally asked a bar association officer to circulate his/her fund-raising announcement under the bar association’s email, notwithstanding the ban on personal solicitation of campaign contributions (see 22 NYCRR 100.5[A][5]; Opinion 16-79). However, the judge has no direct personal knowledge of the circumstances, including the identity of the person who made the request.
Absent such direct personal knowledge, the judge has “wide discretion in making the threshold determination whether there is a ‘substantial likelihood’ of a ‘substantial violation’ of the Rules Governing Judicial Conduct, based on all surrounding circumstances known to the judge” (Opinion 20-201). As we have frequently emphasized, “mere rumor, gossip, innuendo, or other ‘third hand’ information, does not trigger a judge’s disciplinary obligations” (Opinions 20-201; 16-110; 15-138/15-144/15-166). Based on the information provided, we cannot say that the judge has received information indicating a substantial likelihood that the judicial candidate committed any professional misconduct. Accordingly, the judge need not report the judicial candidate. Instead, it is within the judge’s sole discretion to determine whether or not the two prongs are met. If the judge so concludes, then he/she must determine what action is appropriate under the circumstances (see Opinion 15-138/15-144/15-166).
[1] As the candidate is an attorney seeking judicial office, we assume the judge is considering whether to report him/her to the appropriate grievance committee (see 22 NYCRR 1200, Rule 8.2[b]).