Opinion 05-149

January 26, 2006

Digest:         A full-time judge may engage in developing and producing a CD- album(s) of original copyrighted songs written and performed by the judge, but may not be directly involved in its marketing or sales.

Rule:            22 NYCRR 100.4(A), (D)(1)(a), (D)(3); Opinions 95-55 (Vol. XIII); 99-145 (Vol. XVIII).

Opinion:

         A full-time judge asks whether he/she may produce and market a body of original copyrighted work containing fourteen songs written and performed by the judge. The judge also says another CD-album is in the early stages of development, and that he/she wishes to serve as its executive producer. As executive producer, the judge proposes to be involved in the marketing and sale of the CD-album(s) through the internet and retail markets and in submitting the material to radio stations, entertainment industry representatives/agents, and other media for playing time and royalties. Promotions for the CD-album(s) would state that it contains the judge’s original lyrics and music, lead vocals and keyboard, and would refer to the judge as executive producer. No reference would be made to his/her judicial position.

         Section 100.4(A) of the Rules Governing Judicial Conduct permits a judge to engage in avocational activities that do not: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office;

or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office. Additionally, section 100.4(D)(3) provides that a full-time judge is not permitted to “serve as an officer, director, manager, general partner, advisor employee or other active participant of any business entity . . .”

         In Opinion 99-145 (Vol. XVII) the Committee stated that a full-time judge may write and have published works of fiction provided that the promotion of the works did not exploit the judge’s judicial position. Similarly, in this matter, the inquiring judge wishes to produce CD-album(s) containing the fruits of his/her creativity. In our view, the judge’s development of the CD-album(s) is akin to a judge publishing works of fiction. Such activity would not cast doubt on the judge’s impartiality, detract from the dignity of judicial office, nor be considered incompatible with judicial office. Provided the creative aspects of the production of the CD-album(s) do not interfere with the judge’s performance of his/her judicial duties, e.g. he/she does not use court time or resources to engage in this activity and provided further no reference to his/her judicial position is made in the marketing and sale of the CD-album(s), the judge’s involvement in the creative aspects of producing the material would be permissible. 22 NYCRR 100.4(A) and (D)(1)(a).

         The judge has also proposed to be the executive producer of the CD and to participate personally in its marketing and sales, including selling the CD in the general music market and contacting radio stations, entertainment industry/agents and other media. But, under the Rules Governing Judicial Conduct, full-time judges are not permitted to engage in such ongoing business activities. 22 NYCRR 100.4(D)(3) and Opinion 95-55 (Vol. XIII). Nevertheless, he/she may meet with entertainment executives for the exclusive purpose of finding a representative who may in turn sell and/or market the CD-album(s). Once the representative is retained, the judge should discontinue any direct involvement in sales and marketing..

         As for using the term “executive producer,” it is our understanding the term “executive producer” does not have a precise meaning in the entertainment world. Thus, there is no objection per se to the judge’s use of that term. However, to the extent particular proposed activities of the judge above mentioned, e.g., sales and marketing, are objectionable as a matter of judicial ethics, the judge should avoid them, regardless of whether the judge describes him/herself as executive producer.