Opinion 04-37

March 11, 2004

Digest:         Under the circumstances, it is not improper for a judge to be included in a family photograph being published in an informational brochure by the parochial school whose director is the judge’s spouse.

Rules:          22 NYCRR 100.2(C); Opinion 96-07 (Vol. XIV).

Opinion:

         A judge’s spouse serves as a director and teacher at a parochial school in the judge’s community. The school will be publishing an informational brochure describing the school, the programs available and biographical information about the director. In the past, the brochure included a picture of the director with his/her family.

         The judge inquires if it would be permissible to be pictured on the brochure with the director/teacher and the rest of their family. No reference would be made to the judge’s judicial title or position.

         Although the Rules Governing Judicial Conduct prohibit a judge from lending the prestige of judicial office to advance the private interests of others, in this situation the judge is merely participating in a family photograph reasonably related to the spouse’s employment. 22 NYCRR 100.2(C).

         In Opinion 96-07 (Vol. XIV), this Committee allowed a full-time judge to be included in the family photograph published on the campaign literature of the judge’s spouse who was running for re-election to a part-time judgeship.

         The Committee said:

To exclude the spouse-judge from the photograph would seem odd, and, indeed, misleading. But to prohibit entirely any use of a photograph that includes the judge seems unnecessary, so long as proper precautions are taken. The crucial requirement, therefore, is that the photograph itself or any reference thereto, must not identify the judge by title or position. In the view of the Committee, that is a necessary condition to the use of a family photograph. Opinion 96-07 (vol. XIV).

         Certainly, if the judge could be included in a family photograph as part of political campaign literature that is being circulated on the behalf of the judge’s spouse, we see no reason why the inquiring judge could not likewise be included in a family photograph under the circumstances described.