Ezel / Ethics Opinions / NYSBA
NYSBA October 31, 1983

Can a district attorney who is not running for reelection publicly endorse a candidate to succeed him?

Short answer: The opinion concluded that a district attorney who is not a candidate for reelection may publicly endorse a successor candidate, as a limited exception to the rule against prosecutors' partisan political activity, because there is no per se appearance of using the office for personal or professional gain; the endorsement must rest on qualifications, not partisan or personal considerations.

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This page answers the general question as of 1983. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 1983
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

The committee was asked whether a district attorney who is not a candidate for reelection may publicly endorse a successor candidate. It began from its consistent recognition of the basic incompatibility between the duties of a public prosecutor and partisan politics, and the impropriety of prosecutors using their public position to further their professional success or personal interests, citing a long line of its own opinions. Prosecutors should avoid conduct leading the public to conclude they use their office for personal interests and must forgo active campaigning for candidates so they can properly discharge their duties. The committee noted, however, that the rule is designed to avoid the appearance of impropriety rather than impropriety per se, and is therefore subject to appropriate exceptions.

The committee found this situation justified a limited exception. Where the district attorney is not seeking reelection, there is no per se appearance of using the public office to advance an incumbent's professional success or personal interests, so there is no reason the electorate should be denied the retiring prosecutor's views on who is best qualified to succeed to the office. The committee was careful to confine the exception: it would not apply to endorsements of candidates for other offices, or where the retiring district attorney is himself a candidate for some other office. It added that any such endorsement should be based on the candidate's qualifications, not on personal or partisan political considerations, and would be inappropriate even if honestly based on qualifications if there were any substantial appearance of also being based on personal or partisan considerations. Subject to those limitations, the question was answered in the affirmative.

Currency note

This opinion was issued in 1983, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009, and it rests on the appearance-of-impropriety principle of former Canon 9, which the current rules address through Rule 8.4 and the conflict rules rather than a freestanding appearance standard. 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 sitting prosecutor endorse a candidate to succeed him?

A: Yes, if he is not seeking reelection. The committee allowed it as a limited exception because there is no per se appearance of using the office for personal gain.

Q: Does the exception cover endorsing candidates for other offices?

A: No. The committee limited the exception to a successor for the district attorney's own office and excluded endorsements for other offices, or where the prosecutor is himself running for another office.

Q: On what basis must the endorsement rest?

A: The committee held it must be based on the candidate's qualifications, and would be improper if there were any substantial appearance of being based on personal or partisan political considerations.

Background and rules framework

The opinion applied the appearance-of-impropriety principle of Canon 9, with EC 8-6, 8-8, 9-1, 9-2, and 9-6, to a prosecutor's political conduct. The closest current Model Rule analogue is Rule 8.4 (misconduct), under which the appearance concern is now addressed.

Citations and references

Rules of Professional Conduct:

  • MR 8.4 (misconduct)
  • NY Canon 9; EC 8-6; EC 8-8; EC 9-1; EC 9-2; EC 9-6

Other opinions cited:

  • N.Y. State 272 (1972); N.Y. State 537 (1981): prosecutors' political activity (clarified here)
  • N.Y. State 513 (1979): incompatibility of prosecutorial duty and partisan politics
  • N.Y. State 476 (1977): the rule guards against the appearance of impropriety and allows exceptions

See also

Source

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