Ethics Opinions
Iowa Supreme Court Board of Professional Ethics and Conduct
Date of Opinion:
11/06/2006
Opinion Number:
06-02
Title:
SUPPORTING A JUDGE WHO STANDS FOR RETENTION ELECTION
Opinion:
A question has arisen regarding the ethical effect which results when a member of the Bar supports through action or funding a Judge who stands for retention election.
In 1962, Iowa voters approved a constitutional reform that replaced the process of selecting judges by popular vote with a merit selection and retention election process. This process promotes selection of the best qualified applicants and ensures an impartial judiciary while retaining judicial accountability and public oversight. In a retention election, judges do not have opponents. Instead, voters decide whether or not to retain a judge in office. If a judge receives a simple majority of "yes" votes, the judge may serve another full term.
Recently some Judges standing for retention election have experienced organized opposition. In order to properly campaign, Judges have sought the aid and assistance of the Bar in financing and managing their electoral campaign. Both the Bench and Bar seek the Committee
’
s guidance regarding the ethical effect, if any, that could result from such a relationship.
The judiciary of Iowa enjoys the highest of reputation partly due from the fact that it is free from the tangle of liaison caused by active judicial political campaigns and contributions. However, the current trend by some segments of the public to mount organized opposition to judges standing for judicial retention requires us to strike a balance between the right of the judge to campaign so as to educate the public regarding the exercise of their electoral franchise and the integrity and impartiality of the judiciary after the election.
Election campaigns require resources. Iowa Code of Judicial Conduct Canon 7(B)(2) provides that:
"A judge who is a candidate for retention in office without a competing candidate, and whose candidacy has drawn active opposition, may campaign in response thereto and may establish committees of responsible persons to obtain publicly stated support and campaign funds."
If a member of the Bar participates in such a committee or contributes campaign funds, is the lawyer prohibited from appearing before the Judge?
A judge
’
s acceptance of a political contribution from lawyers does not automatically create sufficient bias so as to require recusal.
Pub. Citizen, Inc. v. Bomer
, 274 F.3d 212 (5th Cir. 2001). By authority of Canon 7(B)(2), judges have a right to accept retention campaign funding and lawyers have a right and an obligation to participate in the political process. Cf. Ia.R.Prof.C. 32:7.6 Comment 1.
However the issue does not end with the election. The Iowa Code of Judicial Conduct Canon 2 (B) cautions a judge not to "...convey or permit others to convey the impression that they are in a special position to influence the judge." Likewise, Ia.R.Prof.C.32:3.5 (a) provides that a lawyer shall not: "seek to influence a judge *** by means prohibited by law." While Canon 7(B)(2) may permit a lawyer to provide campaign support to a judge standing for retention election, if the support is given with the motive to obtain influence with the judge, it is unlawful and in violation of Rule 32:3.5(a).
In re Orfanello
, 583 N.E.2d 1277 (Mass. 1992);
Pierce v. Pierce
, 39 P.3d
791 (Okla 2001). Consequently the intent with which a contribution is given or the motive which moves it determines whether there has been an ethical violation.
One
’
s intent or motive to improperly influence may legitimately be inferred in the situation where contributions were made to a judge before whom the lawyer had a pending case. In
Pierce
, supra, the lawyer
’
s intent and motive and a judges impartiality were reasonably questioned when a lawyer in a pending proceeding made a judicial campaign contribution of the maximum statutory amount as did the lawyer
’
s father. Further, the lawyer actively sought further funds from others on behalf of the judge. But it does not necessarily follow that where there is no pending matter political contributions solicited and received by authority of Canon 7(B)(2) are made for improper purposes.
With the above in mind, we suggest the following safe harbor approach to judicial retention election campaign service and fund raising.
1. The Bench and Bar should be mindful of and follow the guidance given in Canons 2(B) and 7(B)2 and Ia.R.Prof.C. 32:3.5(a) and 32:7:6 comment 1.
2. A lawyer should not make a political contribution of funds, goods or campaign services including testimonials or public endorsements to a judge standing for judicial retention election where the lawyer is counsel in a matter presently assigned to the judge.
3. To avoid the appearance of impropriety a lawyer should not appear as counsel before a judge to whom the lawyer had contributed funds, goods or campaign services including testimonials or public endorsements, either directly or by controlling or directing the flow of funds from a political action committee to the judge, within the past year without full disclosure having been made on the record to the opposing party and counsel.
4. Lawyers who contribute to political action committees, which are created to fund judicial retention campaigns generally and not created specifically with regard to a particular judge, are not subject to the requirements of paragraphs 2 and 3, unless the lawyer is in a position to control or direct the flow of funds from the political action committee to the judge.
For the Committee,
NICK CRITELLI,
Chairman
Committee on Professional Ethics and Standards
Iowa State Bar Association