More Insight Into New York's Useless Legal Ethics Groups

Rube Goldberg Rules
Judicial Reports by Mark Lagerkvist - October 31, 2008
mark@lagerkvist.net

Due to the absurdity and illogic of New York's judicial campaign finance rules, even the best of candidates can appear conflicted. Second in an occasional series. It’s a paradox cloaked in robes: Candidates running for judge in New York State seek campaign gifts from lawyers while somehow trying to maintain an appearance of both ignorance and judicial independence. “This baroque dichotomy between their sublime aspirations of judicial excellence and the ridiculous rules to which they have to conform while they pirouette to the demands of politicians and titans of the bar must bend the minds of the best and idealistic judicial candidates like a pretzel. We are destroying the very institution we are trying to save,” wrote attorney Richard D. Emery, a member of the State Commission of Judicial Conduct, in a 2006 opinion.

And that was just for starters. “How they maintain a sense of moral and ethical equilibrium,” he continued, “when they are forced to curry favor with, and be obsequious to, self-important political martinets, as well as, unavoidably, solicit contributions from the practitioners whose cases they judge, is far more than I can fathom.” The result is a convoluted and confusing system that could have made Rube Goldberg turn green with envy – or campaign cash. A plethora of rules, regulations, and decrees of the State’s Board of Elections, Advisory Committee on Judicial Ethics, Judicial Campaign Ethics Subcommittee and Commission on Judicial Conduct are complex and sometimes contradictory. Collectively, Supreme Court candidates in New York State accepted more than $400,000 from lawyers and law firms during the first six months of the 2008 election cycle, according to a Judicial Reports investigation. Those contributions from attorneys accounted for 60 percent of the campaign gifts they received. More than 100 of those donations were for $1,000 or more. The inherent conflicts were illustrated in a Judicial Reports story (LINK) focusing on a $10,000 campaign gift to Supreme Court Appellate Justice Anthony J. Carpinello, disclosed by ty the judge's campaign in a Board of Elections filing. What’s more, the donation was made during a pending appeal.

PLAYING BY THE RULES — ALAS

The judge and the firm deny any improprieties; both contend they are simply playing by existing rules. The firm, Powers & Santola of Albany, has been prolific in its contributions to justices in the courts where it practices most. The firm, which specializes in plaintiffs personal injury and medical malpractice cases, has doled out $157,725 to Supreme Court candidates since 2004, including five-figure contributions to nine sitting judges. The biggest was a $25,000 check to the campaign of Presiding Justice Anthony V. Cardona of the Supreme Court Appellate Division’s Third Department. Despite the size of some contributions, State authorities have assumed judges are not influenced because the jurists are prohibited from knowing who gave and how much. “A candidate should remain ignorant of who contributed to his or her campaign,” stated the Advisory Committee on Judicial Ethics in one opinion. However, in the Internet age and just a few clicks of a mouse, judicial candidates — their careers and livelihoods at stake — can easily see the public records showing who supported them or their opponents. “Who’s stopping me, other than my own ethical feelings about it?” remarked Schenectady County Supreme Court Justice Vito C. Caruso.

AN ANOMALY, AN ABSURDITY

“We have an anomalous situation in which everyone but the candidate could know who contributed, and some people believe that the candidates themselves find out, not withstanding the Advisory Opinions,” wrote Robert H. Tembeckjian, Administrator and Counsel for the Commission of Judicial Conduct, in an email to Judicial Reports. A somewhat conflicting Advisory Opinion allows the judges to meet contributors face-to-face at their fundraisers. “A judicial candidate may attend his/her own fund-raising event and may actually see and acknowledge individuals in attendance,” the opinion stated.

Tembeckjian conceded the paradox: “For example, if a candidate speaks at his/her own fund-raising event, for which tickets had to be purchased in advance by attendees, the candidate would naturally assume that virtually everyone in the room was a contributor. Also there are contributors who would who are unaware of the Advisory Opinions and would tell a judge if they contributed.” What shields a judicial candidate from campaign business is the candidate’s political committee, the entity that solicits contributions and spends the money. That committee is supposedly independent — even though it is headed by a treasurer, who is chosen by the candidate and who serves at the candidate’s pleasure. That thin legal prophylactic is further stretched by the personal financial stakes some judicial candidates take in their campaigns.

“I went to the bank and signed a promissory note for $50,000 so I could lend it to my campaign,” said Justice Carpinello told Judicial Reports. “Don’t think that’s not hurting me. Because when I can’t pay my bills, and my wife can’t go to see our grandkids in California because I’m paying the monthly payment on that loan, don’t think that doesn’t hurt either. So those are the pressures the system has put on me to try to preserve my position.” Such a debt leads to another troublesome conundrum. The Judicial Code of Conduct requires that “a judge shall keep informed about the judge’s personal and fiduciary economic interests.” If so, should Carpinello comply by examining the detailed financial disclosures of the campaign to which he lent $50,000? And if he were diligent in following that canon, would he run afoul of Advisory Opinions by learning the particulars about contributors and contributions? Even worse, a large personal loan could also cause the candidate to become even more fiscally dependent on his campaign donors. Whether or not his political committee is able to repay him for the loan often depends directly on the largess of his contributors. To be fair, it should be noted that Carpinello’s election opponent, Rensselaer County Court Judge Patrick J. McGrath, also lent $50,000 to his campaign. McGrath did not respond to calls from Judicial Reports.

CONFLICTS DON’T END WITH ELECTIONS

Even after the election is over, the potential conflicts continue. One Advisory Opinion states: “A judge must return unexpended campaign funds to contributors on a pro-rata basis.”But that would require the judge to learn the identities of the contributors and how much they gave — the same information other Advisory Opinions expressly forbid the judge from knowing.For judges who inadvertently discover the identities of the lawyers who contribute, there is another Advisory Opinion. This one leaves it up to the judge to decide whether to raise the issue of disqualification from cases involving those attorneys. It concludes that if “the judge is confident he/she can be fair and impartial, no disqualification is required.”

In short, the judge is the judge of whether he or she should judge a case involving a campaign benefactor, putting his honor on the honor system. What’s even more mind-boggling are the “secret” opinions of Judicial Campaign Ethics Subcommittee, a panel of five jurists appointed by the Advisory Committee on Judicial Ethics to confidentially answer questions from candidates. “The subcommittee’s opinions are not published, because only the inquiring candidate is entitled to rely on them, and only during his or her current campaign cycle,” explains the Unified Court System’s web site. The bottom line is that there are unpublished rules that apply to some judicial candidates but not others. Those secret edicts can change from election to election. Not even judges are equal under the laws, rules, regulations and opinions haphazardly designed to protect judicial impartiality and independence.