Amended Opinion 05-101

September 8, 2005

(Clarified and Reissued June 20, 2019)

Digest:         It is not unethical for a judge running for election (1) to be depicted in campaign materials wearing judicial robes; (2) to use photographs of the candidate (a) taken in any public place to which members of the general public have access for the taking of photographs; or (b) taken in chambers or the court library, provided that there is no indication of the official nature of such locations and that administrative permission has been obtained.

Rules:          22 NYCRR 100.5(A)(1)(e); Opinions 03-90; 00-102; New York State Bar Association Opinion 289.

Opinion:

         Several judges have inquired whether it is permissible to have photographs taken of themselves, in their judicial robes, for use in their campaign materials in court-related locations.

         We note initially that the Committee has previously determined, in Opinion 03-90, that a Housing Court judge seeking election to the Civil Court of New York City may circulate campaign literature with a photograph of himself/herself in judicial robes. That opinion, however, does not address questions of location, context, and administrative regulations. In that regard, it appears to the Committee that there is no ethical barrier to the taking of pictures in locations to which the general public has access for the taking of photographs, such as in front of the courthouse, since in such instances there is no implication of involvement of the judiciary itself in a political campaign. Thus, during the applicable window period, any judicial candidate – whether a non-judge or a sitting judge – may use photos taken on the steps of the courthouse or other locations to which the general public has access for the taking of photographs. What judicial candidates must not do is create an appearance that they are improperly using “insider” access or status to take campaign photographs in restricted locations. That is, as a matter of judicial ethics, care must be taken to avoid using photographs that might convey the impression that the courthouse is being used for political purposes and, in particular, to facilitate the candidacy of a sitting judge. Creating a possible appearance of endorsement of such candidacy is prohibited (see 22 NYCRR 100.5[A][1][e]). The overriding consideration is the danger of a public perception of entanglement of the judiciary itself in the political process. That danger is readily apparent, we believe, with respect to campaign pictures taken in the courtroom and thereafter used in the campaign.

         Nevertheless, we do not believe that it would be ethically improper to allow photographs to be taken in a courthouse library or chambers, since both locations might be considered generic in nature (i.e. a library and an office) rather than representing a specifically judicial location. Accordingly, such photographs may, as a matter of judicial ethics, be used provided that there is no connotation of a judicial context (see New York State Bar Association Opinion 289).

         This does not eliminate the necessity for obtaining permission to take photographs in the courthouse. Under Part 29 of the Rules of the Chief Judge it would be forbidden to take such pictures in chambers or in the library without first being allowed to do so by the appropriate administrative authority (see 22 NYCRR Part 29; Opinion 00-102). Accordingly, while as a matter of judicial ethics, library and chamber pictures would not be improper under the conditions stated above, nothing set forth herein is intended to diminish the authority of court administrators to determine whether or not permission should be granted.