Please note that the pamphlet referenced within the opinion titled "Becoming a Judge; Ethics and Campaign Practices" is no longer in print.

JI-120

March 22, 1999

SYLLABUS

All advertising generated by a candidate seeking judicial office must avoid misrepresenting the candidate's own qualifications and the qualifications of the candidate's opponent.

It is misleading and unethical for a candidate for judicial office to refer to an opponent's rating by a local bar association as "not recommended" in the candidate's campaign literature when, in fact, the bar association's actual rating of the opponent's "qualified, but not recommended."

References: MCJC 7B(1)(d); JI-74; Becoming a Judge; Ethics and Campaign Practices.

TEXT

An inquiry has been requested of the Committee to address the following:

Is it misleading and thereby unethical for a candidate for judicial office to refer to an opponent's rating by a local bar association as "not recommended" in the candidate's campaign literature when, in fact, the bar association's actual rating of the opponent is "qualified, but not recommended"?

The ratings of the local bar association are as follows:

"Outstanding"
"Well Qualified"
"Qualified"
"Not recommended, insufficient experience"
"Qualified, but not recommended"
"Not recommended"

This request concerns MCJC 7B(1)(d) that states:

"(1) a candidate, including an incumbent judge, for a judicial office:

• "(d) should not use or participate in the use of any form of public communication that the candidate know or reasonably should know is false, fraudulent, misleading, deceptive, or which contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading, or which is likely to create an unjustified expectation about the results the candidate can achieve."

This request also concerns JI-74 that states in part that "any advertising presented by a judicial candidate must . . . avoid misrepresentation and the creation of false impressions of identity, qualification, background or incumbency."

Judicial candidates are provided guidance on how to conduct their campaigns. All judicial candidates are provided a pamphlet entitled, Becoming a Judge: Ethics and Campaign Practices, published and distributed by the State Bar of Michigan though the State Bureau of Elections. The section of the pamphlet entitled "Campaign Advertising" provides in part:

"b. Ads may not be false, fraudulent, deceptive, or misleading, or create a false impression through emphasis of size, color, or typestyle.

"c . . . .

"d. Ads may not misrepresent the identity, background, qualifications, or present position of the candidate, or other fact."

Any advertising generated by a candidate seeking judicial office must avoid misrepresenting the candidate's own qualifications as well as those qualifications of the candidate's opponent. The situation that comes readily to mind is where a candidate "embellishes" the candidate's own qualifications in campaign literature or speeches, making the statements misleading to the public. However, the prohibitions found in MCJC 7B(1)(d), JI-74, and the pamphlet, Becoming a Judge; Ethics and Campaign Practices, are no less applicable to a candidate whose campaign literature omits a fact concerning an opponent's qualification. When a fact is necessary to make the candidates campaign statement considered as a whole not materially misleading it must be included in all announcements.

Fairness and honesty are important characteristics for which candidates for a judicial office must strive. Material misrepresentations in speech or writing about the candidate or an opponent's qualifications must not be tolerated.

Therefore, great care and precautions should be taken by a judicial candidate to ensure the content of the candidate's campaign literature or speeches is truthful, accurate, and non-misleading. The statement in the candidate's campaign literature, stating the opponent's rating as "not recommended," omits the fact that the opponent was rated as "qualified," even though "not recommended" was part of the opponent's same rating. This type of conduct fits squarely with the judicial candidate campaign prohibitions found in MCJC 7B(1)(d), JI-74, and in the pamphlet, Becoming a Judge: Ethics and Campaign Practices, and is thereby misleading and unethical.

In summary, a candidate for judicial office should not refer to an opponent's rating by a local bar association as "not recommended" in the candidate's campaign literature when the bar association's actual rating of the opponent is "qualified, but not recommended." The judicial candidate should have known the statement on the candidate's campaign literature was misleading in that it omitted a fact necessary to make the statement considered as a whole not materially misleading.