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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1974-6

Proposed Canon 7 of the Code of Judicial Conduct as it relates to fund-raising for election to judicial office is not too restrictive, but is not sufficiently inclusive in its applicability and thereby allows for substantial abuse.

QUESTION:

Is proposed Canon 7 of the Code of Judicial Conduct, as it relates to fund-raising for election to judicial office, too restrictive?

OPINION:
No, but it is not sufficiently inclusive in its applicability and therefore allows for substantial abuse.

DISCUSSION:

Proposed Canon 7 states that it applies to a "judge or a candidate for judicial office." In the opinion of this committee, however, it does not apply to nonjudge candidates.

In the context of elections, a "candidate" is defined as:

".an individual listed on the ballot, or who has qualified to have write-in votes on his behalf counted, by election officials, for nomination or for election to any elective office or who receives a contribution or makes an expenditure or gives his consent for any other person to receive a contribution or make an expenditure with a view to bringing about his nomination or election to any elective office, whether or not the specific elective office for which he will seek nomination or election is known at the time the contribution is received or the expenditure is made." (Elections Code section 11513, added by Stats. 1973.) (Emphasis added.)

Applying that definition to Canon 7, it appears that it limits all persons seeking judicial office to abide by its provisions. That is its clear intent. Yet, many judges presently oppose Canon 7 on the ground that an incumbent judge is in an unfair position vis-a-vis a candidate who is not a judge.

The opposition appears to be based on a probable hiatus in the applicability of the Rules of Judicial Conduct. Query: do these rules apply to persons who are not judges? It is submitted that the answer is no. Typically the Preamble to such rules state that they are intended to apply to persons in judicial office. (See Preamble, American Bar Association, Canons of Judicial Ethics; Drinker, Legal Ethics, 328.) Further, even if it were intended that the rules apply to persons other than those already in judicial office, it is submitted that there is insufficient authority for such an extension, absent legislative, or possibly State bar action. Thus, there is a prohibition against a judge from soliciting funds, but not against a nonjudge candidate.

Sections B(l)(a) and (b) of Canon 7 specifically allow committees set up on behalf of a judicial candidate to solicit campaign funds in specific, limited situations.

The theory behind allowing others to solicit funds and support, albeit on a limited basis, where the candidate himself is precluded is an attempt to (a) maintain the dignity of the potential judge and of the judicial office, and (b) insulate the candidate from becoming "obligated" to contributors while serving in office. The Canon specifically provides that the identities of contributors should not be revealed to the candidate, unless he is required by law to file a list of campaign contributors. (A Campaign Statement itemizing expenditures must be filed, but need not be prepared by or signed by the candidate. Elections Code § 11518 (h). )

A further restriction is placed upon the judicial candidate in that his committee may not solicit funds unless his reelection is contested, and then, no later than 120 days after the last election in which he participated during the election year.

On the other hand, a nonjudge candidate apparently has no such restriction on seeking support or funds, except as they may be limited by the generally applicable rules of ethics.

It is this Committee's opinion that Canon 7 is not, conceptually, too restrictive. The rules seem appropriate and should be made part of the Code of Professional Responsibility and made applicable to all attorneys.

Additional Considerations: If a lawyer contemplates running for a judicial office, could he solicit funds? It is suggested that the restrictions contained in Section b(2) of proposed Canon 7 which apply to judge-candidates should also apply in this case.

It is imperative that the dignity and absolute integrity and impartiality of the judicial office and the judge be preserved, not only in fact, but also in appearance. Various ethical pronouncements have considered the essence of the office and the image that must be maintained.

Canon 2 of the American Bar Association Canons of Professional Ethics admonishes that, "the aspiration of lawyers for judicial position should be governed by an impartial estimate of their ability to add honor to the office and not by a desire for the distinction the position may bring to themselves."

The American Bar Association's Canons of Judicial Ethics, relating to candidacy for office, state:

"if a judge becomes a candidate for any judicial office, he should refrain from all conduct which might tend to arouse reasonable suspicion that he is using the power or prestige of his judicial position to promote his candidacy or the success of his party.

"he should not permit others to do anything in behalf of his candidacy which would reasonably lead to such suspicion." (American Bar Association, Canons of Judicial Ethics, Canon 30, Candidacy for office (amended 1933).)

The importance of the judicial office mandates that every precaution be taken to preserve the sanctity and high moral standards of judges and the courts. It is the opinion of this Committee that popular election of judges compromises this goal and puts the judicial candidate in an ethical quandary. If he comments on current issues or states a view with regard to how certain types of matters should be handled, he could be disqualified from sitting in any case involving the matters discussed during the campaign as he has demonstrated bias or prejudgment on the issues.

So long as we have elected judges, the realistic requirement of the need for funds must be considered. The approach taken by Canon 7 seems to fairly meet this requirement while preserving the integrity of the office and the candidate.

CONCLUSION:

Canon 7 of the proposed Rules of Judicial Conduct places appropriate restrictions upon judges seeking to retain their office. The restrictions, however, probably would not apply to nonjudge candidates and thereby place the candidate-judge in an unfairly disadvantageous position regarding fund-raising for election to office. The appropriate solution would seem to be to promulgate similar rules as part of the California Code of Professional Responsibility, making it applicable to all attorneys who are, after all, the only candidates for judicial office.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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