Can a prosecutor campaign for other candidates while running for re-election?

Plain-English summary

The committee was asked whether a prosecuting attorney may endorse and actively campaign for other candidates for public office during the year in which the prosecutor is himself a candidate for re-election. It answered in the negative.

The opinion clarified N.Y. State 272 (1972), which had concluded that a prosecuting attorney may not campaign for candidates for public office but had ended with a paragraph disclaiming any standard for the year in which the prosecutor seeks re-election. The committee said that paragraph could be misread to free a district attorney who is campaigning for re-election to also campaign for others, and stated plainly that this was not its intent.

The committee reasoned that, as to political activity, a district attorney's position is analogous to a judge's: each must refrain from partisan politics, guard the reputation of the office and the profession, and avoid conduct suggesting use of public position for personal interest. It pointed to Section 33.7 of the Rules of the Office of the Administrator of Courts, under which a judge may campaign for his own re-election but may not participate, directly or indirectly, in any political campaign for another office. The same standard applies to prosecuting attorneys under EC 7-13, EC 8-8, EC 9-1, and Canon 9. The question was answered in the negative. The opinion clarified N.Y. State 272.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (the special responsibilities of a prosecutor now appear at Rule 3.8). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a district attorney endorse other candidates while running for re-election?

A: No. The committee held a prosecutor may not actively campaign for other candidates even during his own re-election campaign.

Q: Why is a prosecutor treated like a judge for political activity?

A: The opinion reasoned that both positions carry an obligation to refrain from partisan politics and to avoid the appearance of using public office for personal interest.

Q: What did this opinion clarify about N.Y. State 272?

A: It clarified that the closing paragraph of N.Y. State 272 did not exempt a prosecutor seeking re-election from the bar on campaigning for others.

Background and rules framework

The opinion applied Canon 9 and EC 7-13, EC 8-8, and EC 9-1 to a prosecutor's political activity, drawing on the political-activity rules for judges (Section 33.7 of the Rules of the Office of the Administrator of Courts). The closest current Model Rule analogue is Rule 3.8 (special responsibilities of a prosecutor).

Citations and references

Rules of Professional Conduct:

• MR 3.8 (special responsibilities of a prosecutor)
• NY Canon 9, EC 7-13, EC 8-8, EC 9-1

Other opinions cited:

• N.Y. State 272 (1972): a prosecuting attorney may not campaign for other candidates (clarified)

See also

• NY State Bar Op. 552: Prosecutor's political endorsement of a successor
• NY State Bar Op. 544: Part-time prosecutor conflict and criminal defense
• NY State Bar Op. 564: Part-time prosecutor conflict and special DA

Source

• Landing page: https://nysba.org/opinion-537/