Whether electing judges is a good idea at all is a topic being hotly debated in legal circles right now. Election campaigns require money, and there is some doubt that even the best-intentioned judges can resist the basic human impulse to respond to a “favor” (like a campaign contribution) by returning the favor. So if a judge knows that a lawyer or a lawyer’s client has made a campaign contribution, he may be more inclined to look favorably on that case, even if he is consciously trying not to (see Thomas M. Susman, “Reciprocity, Denial, and the Appearance of Impropriety: Why Self-Recusal Cannot Remedy the Influence of Campaign Contributions on Judges’ Decisions,” Journal of Law and Politics (August 2011)). And because campaign contributions are a matter of public record, it’s hard to argue that judges can be shielded from knowing who their campaign contributors are.
Whether or not judges are influenced by campaign contributions, there is a significant public perception that they are. According to a 2011 survey conducted by Justice at Stake, a non-partisan organization whose mission is to ensure an impartial court system, 83 percent of the public believe that judicial campaign contributions influence judges’ decisions to some degree (National Registered Voters Frequency Questionnaire, October 2011). An earlier survey showed 26 percent of state court judges believe campaign contributions affect their decisions (Justice at Stake Campaign, National Surveys of American Voters and State Judges, October 2001–January 2002).
Given that 39 states have judicial elections at some level of the court
system, many lawyers face the dilemma of whether to contribute to judicial election campaigns or not. If you contribute, will it look like you are trying to influence a judge? Will you then be prohibited from appearing in front of that judge? On the other hand, if you don’t contribute, but the lawyer or party on the other side does, will you and your client be disadvantaged? What ethical rules apply?
First, under Canon 1.2 of the American Bar Association (ABA) Model Code of Judicial Conduct, judges have a duty to avoid “impropriety and the appearance of impropriety.” And under Canon 2, Rule 2.11, a judge has an ethical responsibility to perform judicial duties impartially, and to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Disqualification is specifically required if the judge knows that a party has made campaign contributions benefiting the judge. (The model rule leaves the threshold amount of the contribution an open question.) Further, according to Comment 5 to Rule 2.11, a judge has a duty to disclose information that litigants might find relevant to a disqualification motion, like whether either the parties or their lawyers have made campaign contributions, even if the judge believes there is no basis for disqualification.
While only a few states have adopted these exact provisions of the Model Code, essentially all states, through statute, rule, or ethical code, require judges to recuse themselves if their impartiality might reasonably be questioned. When a lawyer appears before a judge to whom she has made a recent campaign contribution, a question about impartiality is at least raised.
But it is not clear at what point judicial campaign contributions create an “appearance of impropriety” requiring judges to recuse themselves. The Supreme Court considered this question in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009). In this case, the Court evaluated the timing and size of a campaign contribution, and whether the contribution “had a significant and disproportionate influence” on getting the judge elected. It concluded that the challenging party’s due process rights were violated because the appellate judge did not recuse himself after the opposing side contributed $3 million to his campaign while the case was pending. Taking Caperton into account, most states have set their own standards for judicial disqualification, with the considerations and contribution limits varying somewhat from state to state.
Although most states have rules governing judicial recusal related to campaign contributions, few formal ethical rules govern lawyers making those contributions. The Comment to ABA Model Rule of Professional Conduct 7.6 states that “lawyers have a right to participate fully in the political process, which includes making and soliciting political contributions to candidates for judicial and other public office.” (Rule 7.6 itself governs only contributions made for the express purpose of obtaining “legal engagement or appointment.”) Certainly, First Amendment considerations support the practice of lawyers participating in the political process by making campaign contributions to judicial candidates. Further, lawyers work with judges and are in a position to evaluate judges’ competence. As a result, many lawyers may feel strongly about participating in the judicial election process.
Even though formal ethical rules may not apply for the most part, a lawyer who decides to contribute to a judicial campaign should consider the implications of contributing. First, note that if you do contribute to a judicial campaign, you run the risk of prompting opposing counsel to file a disqualification motion if you have a case assigned to that judge. Under Caperton and individual state rules, the size, timing, and impact of your contribution will be taken into account if a disqualification motion is made. But even if a disqualification motion is ultimately unsuccessful, you, and your client, will still have to deal with the time and expense of responding to it. And if the motion is successful, you may be unable to appear in front of a judge you think highly of, at least for some amount of time.
Second, you may want to consider disclosing your judicial campaign contributions to opposing counsel even though the ethical rules do not specifically require you to do so. Currently, only Alabama specifically requires that lawyers disclose campaign contributions to other lawyers in a case (Ala. Code sec. 12-24-2(b)). But in the 2011 article “Legal Ethics and Campaign Contributions: The Professional Responsibility to Pay for Justice” in the Georgetown Journal of Legal Ethics, Professor Keith Swisher argues that failure to disclose may implicate Model Rule of Professional Conduct 8.4(f). Under rule 8.4(f), a lawyer may not “knowingly assist a judge . . . in conduct that is a violation of applicable rules of judicial conduct.” Because judges are required to disclose relevant campaign contributions, if a judge fails to do so and the implicated lawyer fails to speak up, the lawyer, in theory at least, assists the judge’s violation.
Further, in August 2011, after an extensive ABA study on judicial disqualification requirements, the ABA House of Delegates passed a resolution encouraging states to require disclosure from “litigants and lawyers who have provided, directly or indirectly, campaign support in an election involving a judge before whom they are appearing” (2011 Resolution 107, Judicial Disqualification and Disclosure). Thus, disclosure is not only considered the best practice by the profession at this point, but may soon become mandatory.
On the other hand, whether you contribute or not, you may want to investigate whether opposing counsel in a case you are working on has contributed to the campaign of the judge assigned to your case. While no ethical rules specifically require this, Model Rule of Professional Conduct 1.3 imposes a duty to act with “reasonable diligence” in representing a client. Arguably, failure to check on whether opposing counsel has contributed to the judge’s campaign could be seen as a lack of diligence. At a minimum, investigating may help you avoid the ire of a client who discovers that opposing counsel contributed to the judge’s campaign, but you didn’t know about it. Generally, campaign contribution records are public information and are easily accessible electronically.
Finally, regardless of whether you decide to contribute to judicial campaigns or not and regardless of whether you think contributions are likely to affect an individual judge or not, you should avoid claiming to a client, or to anyone else, that contributing to an election campaign might be a viable way to influence a judge’s decision. Under Model Rule of Professional Conduct 8.4(e), a lawyer may not “state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.”
Contributing to election campaigns is a personal decision that may impact your professional life. Be prepared by thinking through the impact of your decision and by knowing what rules apply to the lawyers, clients, and judges you work with.
For More Information
- Which states have judicial elections?: American Judicature Society – Methods of Judicial Selection
- Judicial campaign contribution limits imposed by states:See the appendix to Professor Keith Swisher’s article in the Georgetown Journal of Legal Ethics
Mary Dunnewold is a legal writing instructor at Hamline University School of Law.
Vol. 41 No. 2