Formal Opinion 46.
Candidates for Judicial Office
(1956)

The following problem has been posed to your Committee:

"Complaints have been made as to the practice of candidates for judgeships polling the bar by means of post cards in which that attorney is asked not only to endorse the candidate but also to allow his (the attorney's) name to be used in advertisements in a long list of so-called 'prominent' attorneys who endorse the candidate in question. It has been suggested that such procedure is inherently wrong, because it subjects a practicing attorney to undue pressure, since no matter how inefficient the judge in office may be, no lawyer desires to offend the judge before whom he must practice by refusing to endorse him, and the inference is that the 'prominent' lawyers are the ones who endorse a particular candidate and that the converse is true of the remaining members of the bar." Your committee finds that it has been the practice in this state, for many years, for lawyers during judicial campaigns to do the following:

1. Send out post cards to their clients and friends recommending a particular candidate for judicial office.

2. Permit their names to be published in newspaper advertisements as supporting particular candidates for judicial office.

3. Contribute campaign funds to persons who are, in their judgment, qualified either to hold or retain judicial office.

Concerning the first practice, there has been no criticism. When a candidate for judicial office, or his campaign chairman, delivers to a lawyer, either in person or by mail, post cards to be sent out by the lawyer endorsing the candidacy, the lawyer will either mail out the cards if he approves and likes the candidate, or otherwise will do nothing about them.

As to the second practice, it has usually been customary for a judicial candidate to have a campaign committee or a campaign chairman to conduct his campaign. This committee or chairman takes or sends around petitions to members of the bar asking them to endorse the particular candidate for later publication in the press, or they call on the telephone for permission so to use the name. In most instances the signatures are voluntarily and gladly given. There are some cases, however, where lawyers give their signatures reluctantly because of pressure in the fear that failure to support the candidate in the event he should be elected might prejudice them or their clients at some later time. The general, though perhaps not universal, practice has been that this activity of soliciting names is not carried on by the candidate himself, but someone on his behalf.

As regards the third practice, the situation appears to be about the same. A good candidate normally can get contributions from lawyers without pressure if some responsible person makes the request for him. On the other hand, there are cases where a lawyer feels he has to contribute even though he prefers otherwise, lest at some future time, he or his clients be prejudiced from the failure to do so. The general and probably universal practice has been that this activity of soliciting funds has not been carried on by the candidate himself but by some person or committee on his behalf. Sometimes funds have been solicited on the express condition that the names of the contributors and non-contributors be not disclosed to the candidate, to avoid any appearance of influence or of embarrassment.

Canon 30 of the Canons of Judicial Ethics reads in part:

"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"

In the light of the premises the Committee has arrived at the following conclusions:

1.In a state like Washington, where judges are elected, the bar has an affirmative duty to advise the lay public concerning the qualifications of candidates so that good judges may be elected and unqualified persons defeated. (Canon 2 of the Canons of Professional Ethics.)

2.None of the above three practices is, in the opinion of your committee, objectionable provided no improper pressure is used either by the candidate or by his campaign committee or chairman.

3.With regard to campaign contributions, your committee commends the practice of having this solicitation carried on by some one other than the candidate himself, with a non-disclosure of contributors' names to the candidate; in this context your committee suggests the impropriety of any lawyer informing the candidate of his donation to the campaign.

To the extent that there is any direct contact between the candidate and members of the bar with respect to the campaign, such contact should be kept on a high plane, avoiding any suggestion or appearance of pressure.

4.Candidates for judicial office who are not as yet judges should adhere to the principles applicable to incumbent judges, welcoming voluntary assistance in their own behalf but avoiding any appearance of pressure or any suggestion of future favor or reward, in the event of election.

5.Campaign workers in judicial campaigns should be motivated solely by the purpose of keeping unfit persons off the bench, and putting on suitable persons who will give competent and impartial consideration to questions coming before them for decision. (Canon 2, supra.) Judicial campaign workers should be motivated by no other purpose or expectation.

In this connection we call attention to two opinions of the American Bar Association having a bearing on the subject:

Opinion 105: "Judges seeking election or appointment should not solicit the aid of lawyers by letter or otherwise."

Opinion 139: "A judge should not use the power or prestige of his office to promote his candidacy for office by sending out a form letter requesting endorsement."

We also direct attention to Opinion 120 of the Illinois State Bar Association published in the May 1956 issue of the Illinois Bar Journal:

Question No. 1: "Is it ethical for lawyers to allow their names to be used in a letter or advertisement endorsing a judicial candidate for a particular political party?"

Answer No. 1: "There is no breach of the Canons of Ethics."

Question No. 2: "Is it ethical for lawyers in an advertisement to endorse a judicial candidate before whom the lawyers later will appear?"

Answer No. 2: "No impropriety is present here, unless pressure was used to obtain the endorsement. Judicial Ethics Canon No. 30 and Professional Ethics Canon No. 2 permit a lawyer to endorse a candidate for judicial office, and may seek like endorsements from other lawyers. His actions, however, should be prompted from a sincere belief in the higher qualifications of the candidate he seeks to endorse, and should not be swayed by personal motives."

[See RPC 8.4(f); CJC 7]