In the Matter of Boggia, D-118 September Term 2008; Supreme Court; opinion by Rabner, C.J.; decided July 27, 2010. On an order to show cause why respondent should not be publicly disciplined through the imposition of an appropriate sanction that does not include removal from judicial office. DDS No. 48-1-8808 [24 pp.]

Respondent Philip Boggia and Martin Durkin established the law firm of Durkin & Boggia, a general partnership. They are the firm’s sole partners. Respondent also serves as a part-time municipal court judge for Moonachie.

A complaint was filed with the Advisory Committee on Judicial Conduct alleging that respondent had made political contributions. Attached to the complaint were records of the Edgewater Democratic Campaign Fund showing three contributions from “Durkin & Boggia” and Election Law Enforcement Commission records listing a contribution by “Philip N. Boggia” to the Bergen County Democratic Organization. The checks were all drawn on the “ATTORNEY BUSINESS ACCOUNT” for “DURKIN & BOGGIA.”

The ACJC filed a formal complaint against respondent, alleging that he violated Canon 7A(4) of the Code of Judicial Conduct and Rules 2:15-8(a)(5) and (6) of the New Jersey court rules.

The ACJC conducted a formal hearing. Respondent testified that he was unaware of the checks signed by his partner until he learned of them via the ACJC. He said that when he became a judge, he orally instructed his law partner and office staff to stop making political donations from the firm’s joint business account. His partner certified that the contributions were drawn on the law firm’s checking account by mistake due to his inadvertence.

The ACJC found by clear and convincing evidence that respondent violated Canon 7A(4) of the Code of Judicial Conduct and Rules 2:15-8(a)(5) and (6). It recommended that he be publicly admonished.

Held: While holding that respondent did not violate Canon 7A(4), the Court says the ban on making political contributions from a law firm’s business account must apply both to part-time municipal judges and to the lawyers with whom they practice law and the firms where they do so. It refers the issue to the Professional Rules Responsibility Committee and the Advisory Committee on Extrajudicial Activities to develop appropriate rules to implement this decision.

The Court says that since the 1947 Constitution, it has consistently upheld the principle of a complete separation of politics from the judiciary, to ensure that the judiciary operates independently of political influence and to maintain public confidence in the integrity and impartiality of the system of justice. Canon 2(A) provides that judges are “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 7A(4) says “A judge shall not … make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions.”

The Court says the rules also require that judges avoid all impropriety and appearance of impropriety. It construes the rules governing judicial conduct broadly, to maintain public confidence in the judicial system.

In applying these principles here, the Court says several facts stand out: the contributions were drawn on the business account of “Durkin & Boggia”; the firm’s name appears on the checks as the payor; and respondent is a named partner of the firm. Publicly available records attributed the contributions to “Durkin & Boggia,” and to respondent himself in one mistaken instance. Further, respondent could not say whether the contributions were treated as part of his partner’s draw or as an expense of the partnership, which he would have funded.

The Court says those facts present a close case as to whether respondent violated Canon 7A(4). They create an undeniable appearance that he shared responsibility for the contributions and they raise questions about his vulnerability to political influence.

When respondent became a judge, he took on an implicit burden to be vigilant in detecting possible impropriety and the appearance of impropriety. That duty required that he take sufficient measures to ensure that the firm no longer made political contributions. He instructed his partner and staff not to issue any more such contributions but he took no additional steps and did not monitor whether his request was followed.

Law firms routinely perform conflict checks when they evaluate new clients. The Court says similar arrangements can be made to disallow political contributions and periodically check for them.

To sustain a charge against a judge, the Court says the allegation must be proved by clear and convincing evidence. It says it cannot find that that standard was met here. Also, to the extent there was any lack of clarity in the law, it declines to find a violation of Canon 7A(4).

To provide guidance to part-time municipal court judges going forward, the Court says that as with political contributions from marital assets, political contributions from a law partnership’s business account cannot always be readily identified with a single member of a firm and can suggest a judge’s direct involvement in politics. It declares that contributions by one partner in a two-partner firm can readily run afoul of the ban separating judges and politics. The same concerns apply whether a lawyer’s name appears on the masthead, or if he is a partner, shareholder, director, of counsel or associate (or holds some comparable status), or if post-event accounting adjustments to income can be made. Therefore, the ban on making political contributions from a law firm’s business account must apply not only to part-time municipal judges but to the lawyers with whom they practice law and the firms where they do so.

The Court refers this matter to the Professional Responsibility Rules Committee and the Advisory Committee on Extrajudicial Activity for development of appropriate rules to implement this decision.

As for respondent’s allusion to the First Amendment in light of the disposition of his case, the Court says the First Amendment rights of attorneys who practice law with part-time municipal judges are not limited because they may continue to make personal political contributions.

Justices Long , LaVecchia , Albin , Wallace , Rivera-Soto and Hoens join in Chief Justice Rabner ‘s opinion.

— By Judith Nallin

For the Advisory Committee on Judicial Conduct — Candace Moody. For respondent — Robert E. Ramsey (Donini & Ramsey). For amici curiae: New Jersey State Bar Association — Richard H. Steen, President-elect; Conference of Presiding Judges-Municipal Court — Roy F. McGeady, Presiding Judge Municipal Court.