Can a sitting judge write a letter to the newspaper supporting another judge's retention if the letter does not say the writer is a judge?

Plain-English summary

A member of the judiciary asked the Committee whether it would be proper to write a letter to local newspapers supporting the retention of a judge whom the voters were considering for retention or rejection. The proposed letter would not be on judicial stationery and would not identify the writer as a sitting judge. The Committee answered that the letter would violate Canon 7(A) of the Code of Judicial Conduct. (The opinion noted in a footnote that the Committee will issue opinions under the Code of Judicial Conduct at the request of any judicial officer, attorney or not, since the judiciary is governed by that Code rather than the Code of Professional Responsibility.)

The opinion quoted Canon 7(A), under which a judge should not make speeches for a political organization or candidate or publicly endorse a candidate for public office, and Canon 2(B), under which a judge should not lend the prestige of the office to advance the private interests of others. It concluded that a judge's letter supporting a judicial candidate would constitute a public endorsement of a candidate for public office within the terms of Canon 7(A). The opinion explained that the basic purpose of the Code is to disfavor judicial activities that would tend to reduce public confidence in the integrity and impartiality of the judiciary, and that a judge's involvement in another judge's retention election, particularly when contrary to the Alaska Judicial Council's recommendation, could tend to reduce that confidence.

The opinion observed that information available to voters about sitting judges is limited and that, while other judges might be a useful source, public endorsements by judges are prohibited by Canon 7(A). It noted that attorneys and litigants who have appeared before the candidate are appropriate sources of information for voters and should not be prevented from sharing it. In that regard, the opinion reminded attorneys of DR 8-102 of the Alaska Code of Professional Responsibility, under which a lawyer must not knowingly make false statements about a judicial candidate's qualifications or false accusations against a judge.

Currency note

This opinion was issued in 1988 and interprets the Alaska Code of Judicial Conduct as it then stood. The Code of Judicial Conduct has since been revised and renumbered, and the lawyer-conduct rule it cites (DR 8-102) has been superseded by the Alaska Rules of Professional Conduct. Subsequent revisions or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Code of Judicial Conduct before relying on any specific canon, number, or requirement mentioned here.

Common questions

Q: Can a sitting judge publicly endorse another judge's retention?

A: The opinion concluded a judge may not, because a letter supporting a judicial candidate is a public endorsement of a candidate for public office, prohibited by Canon 7(A) of the Code of Judicial Conduct.

Q: Does it help that the letter is unsigned as a judge and not on court letterhead?

A: No. The opinion concluded the endorsement would still violate Canon 7(A) even though the letter would not be on judicial stationery or identify the writer as a sitting judge.

Q: Can attorneys comment publicly on a judge up for retention?

A: The opinion treated attorneys and litigants who have appeared before the judge as appropriate sources of information for voters, subject to DR 8-102, which bars knowingly false statements about a judicial candidate's qualifications or false accusations against a judge.

Background and rules framework

The opinion interprets the Alaska Code of Judicial Conduct, applying Canon 7(A) (a judge should not publicly endorse a candidate for public office or engage in political activity except on measures to improve the law, the legal system, or the administration of justice) and Canon 2(B) (a judge should not lend the prestige of the office to advance others' private interests). These correspond to the political-activity and prestige-of-office provisions of the ABA Model Code of Judicial Conduct. The opinion also cites DR 8-102 of the former Code of Professional Responsibility, the lawyer rule on statements about judicial candidates (the analog of Model Rule 8.2).

Citations and references

Code of Judicial Conduct (cf. ABA Model Code of Judicial Conduct):

• Alaska CJC Canon 7(A) (no public endorsement of a candidate; limits on political activity)
• Alaska CJC Canon 2(B) (not lending the prestige of office to others' interests)

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 8-102 (statements concerning judges and judicial candidates) (cf. Model Rule 8.2)

Other opinions cited:

• Alaska Ethics Opinion 85-1; ABA Informal Opinions 1468 and 85-1513

See also

• NYC Bar Op. 1987-5: Judicial Robes in Campaign Ads
• OH BPC Op. 88-017: Judicial Campaign Contributions

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/88-5.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION 88-5
Letter regarding judge standing for retention election
The Ethics Committee has been requested by a member of the judiciary to
give an opinion as to the propriety of writing a letter to local newspapers
supporting the retention of a judge who is being considered by the voters for
retention or rejection. The letter to the news media would not be on judicial
stationary, and would not identify the writer as a sitting judge. It is the
opinion of the Committee that the letter would violate Canon 7(A) of the Code of
Judicial Conduct.1/
Canon 2(B) of the Code of Judicial Conduct states, in part:
[A judge] should not lend the prestige of his office to advance the
private interests of others...
Canon 7(A) of the Code of Judicial Conduct states, in part:
(1) A judge or candidate for election to judicial office should not:...(b)
make speeches for a political organization or candidate or publicly
endorse a candidate for public office...

1/The Alaska Bar Association Ethics Committee will issue opinions on the
propriety of conduct under the Code of Judicial Conduct at the request of a
judicial officer, whether that judicial officer is an attorney or a non-attorney.
The judges who are attorneys have the right to request ethics opinions
regarding their own conduct in the same manner that attorneys may request
opinions. The principal difference is that the attorneys are guided and
governed by the Code of Professional Responsibility, while the judiciary is
guided by the Code of Judicial Conduct. Additionally, as a practical matter,
the Ethics Committee is unaware of any other agency in the State of Alaska
which will issue advisory opinions intended to assist the judiciary. It makes no
practical sense to opine as to the Code of Judicial Conduct at the request of
judges who are attorneys, and refuse to do so at the request of judicial officers
who are not attorneys. Accordingly, opinions as to the Code of Judicial
Conduct may be sought by both attorney and non-attorney judicial officers.

1

(4) A judge should not engage in any other political activity except
on behalf of measures to improve the law, the legal system or the
administration of justice.
It is the Committee's opinion that a judge who writes a letter in support of
a judicial candidate, which letter is not on judicial stationary and does not
identify the writer as a sitting judge, would violate Canon 7(A) of the Code of
Judicial Conduct. Such a letter would constitute a public endorsement of a
candidate for public office within the terms of Canon 7(A).
The basic purpose of the Code of Judicial Conduct is to disfavor activities
of judges which would tend to reduce public confidence in the integrity and
impartiality of the judiciary. Accordingly, because of their offices, judges are
asked to accept restrictions on their public conduct that do not apply to other
citizens. (Alaska Bar Association Ethics Opinion No. 85-1; American Bar
Association Informal Opinions No. 85-1513 and 1468.) A judge's involvement
in the retention election of another judge, particularly where the judge's
position is contrary to the recommendation of the Alaska Judicial Council,
could tend to reduce public confidence in the judiciary.
As a practical matter, the amount of information available for the public to
become informed as to the performance of sitting judges is limited. The Alaska
Judicial Council conducts a poll, and publishes the results and its
recommendations. In Alaska, unlike recently in California and Texas, there
has been very little campaigning or the dissemination of public information in
judicial retention elections.
One of the appropriate sources of information regarding the performance
of a judge would seem to be from other members of the judiciary. Such public
endorsements, however, are prohibited by Canon 7(A). Other sources of
information helpful to the voters are the attorneys and litigants who have
appeared before the judge who is a candidate for retention election. These
potential sources of information helpful to the voters should not be prevented
from disseminating this information.

In this regard, attorneys need to be aware of DR8-102 of the Alaska Code
of Professional Responsibility, which states:
DR8-102. Statements Concerning Judges and Other
Adjudicatory Officers.
2

(A) A lawyer shall not knowingly make false statements of fact
concerning the qualifications of candidate for election or
appointment to a judicial office.
(B) A lawyer shall not knowingly make false accusations against a
judge or other adjudicatory officer.
Submitted by the Alaska Bar Association Ethics Committee this 20th day
of October, 1988.
Adopted by the Board of Governors this 22nd day of October, 1988.

G:\DS\EC&OPS\OPINIONS\88-5.DOC

3