ETHICS OPINION 631-1974 POLITICAL ACTIVITY: DEFENSE ATTORNEY CAMPAIGNING IN BEHALF OF CANDIDATE FOR DISTRICT ATTORNEY

NUMBER 631

QUESTION.

 

Is there any impropriety in a former assistant district attorney, whose private practice consists substantially of the defense of criminal cases, actively campaigning in support of a candidate for District Attorney of the county in which he practices?

 

ANSWER.

 

The mere fact that a lawyer is engaged in private criminal practice in the county in which an election of a district attorney is approaching does not deprive him of his right as a citizen to campaign for the candidate of his choice. Indeed, as stated in EC 8-6, with reference to the candidacies of judges and administrative officials having adjudicatory powers:

 

“Generally, lawyers are qualified, by personal observation or investigation, to evaluate the qualifications of persons seeking or being considered for such public offices, and for this reason they have a special responsibility to aid in the selection of only those who are qualified.”

 

However, because of the nature of a prosecutor’s office and its relationship with counsel for the defense, great care must be exercised to avoid suspicion in the public mind that the activities of the latter in favor of the former are not motivated by ulterior personal or other selfish purpose not consonant with the impartial administration of justice.

 

The powers and duties of a district attorney are somewhat akin to those of a judge in that both officials, while obligated to observe impartiality in the administration of justice, are in a position to grant or withhold help to parties and their lawyers. EC 7-13; N.Y. State 301 (1973). Accordingly, it seems proper to apply to campaigns for district: attorney some of the principles that govern campaigns for judicial office.

 

In N.Y. County 304 (1933) we stated that a lawyer may not contribute to a campaign for judicial office under circumstances which justify the inference that to do so is a device or attempt to gain from a judge special personal consideration or favor.

 

In ABA 226 (1941) the committee Quoted from its Opinion 189 (1938) as follows:

 

“A lawyer may with propriety endorse a candidate for judicial office and seek like endorsement from other lawyers. But the lawyer who endorses a judicial candidate or seeks that endorsement from other lawyers should be actuated by a sincere belief in the superior qualifications of the candidate for judicial service and not by personal or selfish motives;”

 

The principles enunciated in these opinions apply to all types of political support, including seeking and making financial contributions, accepting speaking engagements, soliciting votes by letter or joining a Lawyers’ committee. The amount of the financial support has been mentioned as a factor to be considered in determining its propriety, and presumably the extent of any other support would also be such a factor. All of the circumstances bearing upon the relationship between the lawyer and the candidate, and the inferences which may reasonably be drawn from the lawyer’s activities, must also be considered.

 

ABA 226 suggests the desirability of supporting a candidate through a campaign committee as this reduces the appearance of impropriety to a minimum. Cf. Code of Judicial Conduct, Can,7B(2); K.Y. State 186 (1971). Through such a committee a lawyer may actively support a candidate and still avoid the inference that what he is doing is only a device or attempt to gain from the candidate personal consideration or favor. See also, N.Y. State 289 (1973), N.Y. City 882 (1973).

 

However, regardless of the nature or the extent or method of the support, the lawyer should be guided in what he does by the principles stated above.

 

September 23, 1974.