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Formal Opinion 1994-7

May 16, 1994

ACTION: FORMAL OPINION

 

TOPIC: Contributions to candidates campaigning for New York State Attorney General, District Attorney, and other offices closely tied to the judicial process.

OPINION:

DIGEST: Candidates for New York State Attorney General, District Attorney, and other offices closely tied to the judicial process should not personally solicit campaign contributions, but should establish committees to do so, as candidates for judicial posts do, and avoid learning the names of those contributing to their campaigns.

CODE: DRs 1-102(A)(5), 8-101(A)(3), 9-101(C); EC 7-34; CJC Section 5C(2).

QUESTION

Should a candidate for New York State Attorney General, District Attorney, or another office closely tied to the judicial process personally solicit campaign contributions or otherwise attempt to learn the identity of individuals that donated to their campaigns?

OPINION

The work of an Attorney General or District Attorney is closely tied to the judicial process. Like the work of judges, service as Attorney General or District Attorney involves daily decision-making that directly impacts attorneys and their clients. In our Opinion 882 (1973) (simultaneously released as N.Y. State 289), we urged candidates for judicial office to screen themselves from their contributors and to make diligent efforts to avoiod learning the identities of the donors to their campaigns. Because the rationale and policy underlying our Opinion 882 is equally applicable to those campaigning for the offices of Attorney General, District Attorney and other similar offices, we today expand our prior opinion to cover such candidates. n1

n1 See also N.Y. City Bd. of Ethics Opn. No. 35 (1961) (quoted in The Midas Touch: Campaign Finance Practices of Statewide Officeholders, New York State Comm'n on Gov't Integrity 132 (1989) ("The solicitation of funds for political purposes by a public official from those whose matters come before him or his agency for official action is offensive to proper ethical standards.")).

In Opinion 882, we opined that candidates for judicial office and their family members should not personally solicit contributions other than through a committee. See also New York Code of Judicial Conduct, n2 Section 5C(2) (candidates for judicial office should not personally solicit or accept funds but may establish committees to secure and manage the expenditure of funds for the campaign). In addition, to avoid the appearance of impropriety, the Committee suggested that the names of the people who contributed to the campaign be shielded from the candidate to the extent legally feasible.

n2 As adopted by the House of Delegates of the New York State Bar Association on November 8, 1993.

It is the opinion of this Committee that, like candidates for judicial office, candidates for offices closely tied to the judicial process and their family members should not personally solicit campaign contributions. They should establish committees to do so and, to the extent permitted by law, avoid learning the names of the contributors and the amount of their donations. Although such shielding is not specifically required by the Code of Professional Responsibility, the Committee believes that it would be consistent with the spirit and highest principles of the Code, including DR 8-101(A)(3) ("A lawyer who holds public office shall not . . . [a]ccept anything of value from any person when the lawyer knows or it is obvious that the offer is for other purpose of influencing the lawyer's action as a public official"), DR 1-102(A)(5) ("A lawyer shall not . . . [e]ngage in conduct that is prejudicial to the administration of justice") and EC 7-34 ("The impartiality of a public servant in our legal system may be impaired by the receipt of gifts or loans. A lawyer, therefore, is never justified in making a gift or a loan to a judge, a hearing officer, or an officer or employee of a tribunal except as permitted by . . . the Code of Judicial Conduct, but a lawyer may make a contribution to the campaign fund of a candidate for judicial office in conformity with . . . the Code of Judicial Conduct"). n3

n3 Cf. 22 N.Y.C.R.R. � 100.7(a)(2)(i) (1993) (a judge may attend a fundraising dinner or affair only during the period nine months before a primary election and six months after the general election if the judge is a candidate in the general election but prohibition against personal solicitations remains in force even with respect to such dinners or affairs).

Attorneys should also be aware of the constraints imposed upon them by the Code of Professional Responsibility in making campaign contributions to candidates for Attorney General, District Attorney or similar offices. In particular, DR 9-101(C) bars a lawyer from "stating or implying that the lawyer is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official." Thus, an attorney who makes a donation to a candidate for an office such as Attorney General may not represent, either explicitly or by implication of any kind, that the attorney can or expects or even hopes to obtain favorable treatment as a result of the donation. Certainly, it follows that attorneys should not make contributions for the purpose of influencing any public official on behalf of their clients, regardless of whether the attorneys assert or imply the power to assert such influences. Attorneys who do not contribute in order to influence candidates improperly should not be concerned that the candidates will be unaware of their contributions. Indeed, every legitimate reason for contributing to a political campaign -- for example, to assist the candidate believed best qualified for the job in attaining office -- is served by the mere making of the contribution without attribution.

CONCLUSION

Candidates for the offices of Attorney General, District Attorney, and other similar offices, as well as attorneys donating to their campaigns, should adhere to the guidelines set forth above.