Responsibility for Others

Responsibility for Others

Paragraph (A) of the rule lists what a judge or judicial candidate may not do personally. Paragraph (B) reaches the people who might do those things instead. It requires the judge or candidate to "take reasonable measures to ensure that other persons do not undertake, on behalf of the judge or judicial candidate, any activities prohibited under paragraph (A)."¹ Paragraph (B) forbids no new act. It makes the judge answerable for a second way of committing the old ones: letting someone else do them.

Without paragraph (B), a campaign's structure would defeat paragraph (A). A campaign is rarely one person's work. A treasurer keeps the books, volunteers staff the phones and address the envelopes, and friends write letters to the editor. If the prohibitions covered only the judge's own hands, a candidate could leave the asking for money, the endorsing, and the speaking to helpers and collect the same advantage. A solicitation sent in the judge's name looks the same to a lawyer whoever signed it. Paragraph (B) closes the gap by treating the people who work for the campaign as an extension of the judge.

Three phrases fix the duty's reach. "Other persons" covers everyone from a formal campaign committee to a loyal friend. "On behalf of the judge or judicial candidate" confines the duty to people who act for the judge. "Reasonable measures" sets the standard of care.

The standard of care is the first limit. Reasonable measures make the duty one of care, not a guarantee of results, because no judge can control everything a supporter says or does. A rule that held the judge liable for every supporter's misstep, whatever instructions the judge had given, would punish events the judge had no means of preventing. The standard aims the duty at what a judge can do: explain the limits to helpers, watch what is done in the judge's name, and correct problems when they surface. The text lists no required steps. What counts as reasonable therefore depends on the circumstances, including the size of the campaign and how likely a misstep is.

The phrase "on behalf of" supplies the second limit. A judge's power to control a helper comes from the judge's authority over that helper, so the duty follows that authority and stops where it ends. A person who acts independently is beyond the judge's control, and holding the judge responsible for that person's choices would be both unfair and unworkable. The question for any helper is whether the person is acting for the judge's campaign or for himself or herself.

The judge solicited no one himself, yet he has failed paragraph (B). The volunteer was acting on his behalf, and personal solicitation is an activity paragraph (A) forbids him to carry out in person. Once he knew, the cheapest measure was available: tell the volunteer to stop and return the checks. His silence cannot be called reasonable. Knowledge is not the only route to failure. A judge who gave helpers no guidance at all and ignored obvious warning signs has likely taken no measures worth the name. The harder question is whether every unauthorized act by a campaign worker lands on the judge.

This candidate has complied. Her measures were reasonable before the lapse, because she set limits in advance and kept watch, and after it, because she acted on the day she learned of it. The volunteers in the two stories did the same thing, so the helper's act alone does not decide the judge's compliance. What differs is the judge's own conduct, which is measured by the instructions and supervision in place beforehand and by the response once the problem surfaced.

The "on behalf of" limit also explains why a spouse's independent campaign falls outside the duty, and the New Jersey Supreme Court's decision in In re Gaulkin helps illustrate the point. The court reconsidered its earlier policy extending a judge's political restrictions to a non-judicial spouse and found no confirmed justification for the extension. The old policy rested on the court's perception that a spouse's political activity would seem to embroil the judge in politics, because the public would inevitably believe the spouse's stated views implicated the judge's own thinking.² Gaulkin is a state decision about that court's own policy toward spousal politics. It does not construe paragraph (B), so use it for its boundary-drawing logic and not as a reading of the Model Rule's text. A spouse who campaigns on his or her own initiative is not acting on the judge's behalf, and a judge who takes no part has no paragraph (B) duty to stop the campaign.

Gaulkin also marks the opposite boundary. Even as it loosened the policy, the court said that a judge's use of the marital home for a political or fundraising meeting, or the making of political contributions from common family funds, would still come within the objection. It added that the judge would have to forgo the ordinary courtesy of accompanying the spouse to a political gathering and avoid being seen as a political adviser.³ Each of those items is something the judge does or lends, so each remains the judge's own conduct under the personal prohibitions covered earlier in this chapter, whether or not the spouse is also running. The court also described an implicit burden on the judge to stay vigilant for possible impropriety and its appearance, and it pointed to the Code's disqualification provisions as the avenue for withdrawing from a matter that would or could embarrass the court.⁴ That vigilance echoes the attentiveness reasonable measures demand, though the court voiced it in discussing disqualification. The function a person performs decides agency, and the family tie does not. A spouse who takes over the judge's own fundraising at the judge's request acts on the judge's behalf, so the judge's duty attaches. A spouse who runs for a different office on his or her own account does not.

Step two does the sorting, and steps three and four measure the judge. Two errors recur in answers. One treats a supporter's or spouse's act as automatically the judge's violation. The other excuses the judge's own participation because a relative is also involved, when Gaulkin shows that the judge's own money, home, and presence stay restricted.