Can a bar association conduct a poll rating the qualifications of judicial candidates?

Plain-English summary

The Committee was asked whether a bar association may conduct a judicial poll. It answered yes. The opinion reasoned that lawyers have a duty to assist in improving the legal system under Canon 8, and that they are, in the words of Kentucky Registry of Election Finance v. Louisville Bar Association, 579 S.W.2d 622 (Ky. App. 1978), in a unique position to evaluate the qualifications of judicial candidates. Combining that duty with that ability, the opinion concluded that members of the bar, individually or collectively, may conduct judicial polls.

The opinion drew on Drinker, Legal Ethics, for the proposition that the bar has a duty to see to the removal of a corrupt judge, and reasoned that if there is a duty to remove corrupt judges there is a duty to see the best candidate elected. Citing ABA Informal Opinion 841, the opinion added a candor condition: where a bar association gives an endorsement, full disclosure of the nature of the meeting and vote (the number of persons present and voting) is required, and an association's endorsement should not be construed as the endorsement of each individual member unless the record clearly shows all members concurred. The Committee approved those requirements for Kentucky.

Currency note

This opinion was issued in 1983 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Kentucky bar association poll lawyers on judicial candidates?

A: Under this opinion, yes. The Committee concluded that lawyers' duty to improve the legal system and their ability to evaluate candidates permit a bar association to conduct judicial polls.

Q: What conditions did the opinion attach to an endorsement?

A: Following ABA Informal Opinion 841, the opinion required candid disclosure of the nature of the meeting and vote, and cautioned that an association's endorsement should not be taken as every member's endorsement unless the record shows all concurred.

Background and rules framework

The opinion applied Canon 8 and EC 8-6 of the former Code (a lawyer's responsibility to aid in selecting qualified judicial candidates) and SCR 4.300. The modern analog is Model Rule 8.2 (statements concerning judges and judicial candidates). The analysis turned on the lawyer's recognized role in evaluating judicial fitness, coupled with a candor requirement for endorsements.

Citations and references

Rules of Professional Conduct:

• Canon 8; EC 8-6; SCR 4.300 (former Code)
• MR 8.2 (judicial and legal officials)

Cases:

• Kentucky Registry of Election Finance v. Louisville Bar Association, 579 S.W.2d 622 (Ky. App. 1978), lawyers' role in evaluating judicial candidates
• Gorman v. Lukowsky, 431 F.2d 971 (6th Cir. 1970)

Other opinions cited:

• ABA Informal Opinion 841

See also

• KBA Ethics Op. E-277: Lawyer Contributions to a Judicial Campaign
• KBA Ethics Op. E-351: Lawyer Loans, Gifts, and Campaign Contributions to Judges

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-278.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-278
Issued: September 1983

This opinion was decided under the Code of Professional Responsibility, which
was in effect from 1971 to 1990. Lawyers should consult the current version of
the Rules of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), before relying on this opinion.

Question:

May a Bar Association conduct a judicial poll?

Answer:

Yes.

References:

Canon 8; ABA Code of Professional Responsibility; EC 8-6; SCR 4.300; Kentucky
Registry of Election Finance v. Louisville Bar Association, Ky., App., 59 S.W.2d
622 (1978); Gorman v. Lukowsky, 6 CA., 431 F.2d 971 (1970); Drinker, Legal
Ethics; ABA I.O. 841
OPINION

Lawyers have a duty to assist in improving the legal system, Canon 8. They are "in a
unique position to evaluate the qualifications for judicial candidates." Kentucky Registry of
Election Finance v. Louisville Bar Association, Ky., App., 579 S.W.2d 622 (1978). By conducting
judicial competency polls, lawyers are assisting both the "legal system and the general public by
supporting good candidates and making known the truth about their qualifications." Id.
The combination of the lawyer's duty to improve the legal system, along with his ability to
judge judicial candidates' qualifications, allows members of the bar, either individually or
collectively, to conduct judicial polls, Id.
In the opinion of the Ethics Committee of the Kentucky Bar Association judicial polls aid
in ensuring that qualified candidates are acknowledged for the benefit of the general public and are
permitted under the holding of Kentucky Registry of Election Finance, and Gorman v. Lukowsky,
6 CA., 431 F.2d 971 (1970).
Drinker, Legal Ethics, states:
While the Canon does not specifically refer to the duty of the bar to see to
the removal of a corrupt judge, there is no doubt as to the existence of this duty, in
order to maintain the confidence of the public in the administration of Justice. (P.
61.)

Certainly, if there is a duty upon lawyers to see to it that corrupt judges are removed, there
is a duty to see to it that the best candidate is elected to our Court of Justice.
In allowing a Bar Association to conduct a poll, the ABA in I.O. 841 stated:
Certainly, if endorsement is given by a bar association, candor requires a
full disclosure of the nature of the meeting, the nature of the vote, number of
persons present, voting, etc. In no instance should a bar association's endorsement,
where this is proper under the local bylaws, be necessarily construed to be the
endorsement of each individual member of the bar unless the record is clear that all
members of the bar did actually concur.
We believe the above requirements of the bar association are in order and approve them in
Kentucky.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.