Opinion 11-105

September 15, 2011

Digest:         At the Office of Court Administration’s request, an administrative judge may permit a for-profit video production company to film arraignment proceedings for a documentary, as long as the arraigning judge will merely perform his/her regular judicial duties while being filmed, without any further participation by him/her, and will not allow the filming process to interfere with the proper conduct of the proceedings.

Rules:          Judiciary Law §212(2)(l); 22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(1)-(3); 100.4(D)(3); 101.1; Opinions 09-182; 08-25; 01-86; 94-116 (Vol. XIII); 90-157 (Vol. VI).

Opinion:

         An administrative judge asks whether he/she may, at the Office of Court Administration’s request, permit a for-profit video production company to film arraignment proceedings involving defendants charged with certain "low-level" crimes. The production company would not interview the judge but would seek the consent of individual defendants and their attorneys to be filmed during the proceeding and interviewed afterward. The judge states that the production company "would obscure the identities" of any non-consenting defendants and members of the public, "but the judge, attorneys and court staff would be fully identifiable." The production company has advised the judge that the Legal Aid Society's criminal defense division "does not have any objection to the project in general and would advise defendants on an individual basis." The inquiring judge believes the production company will market and sell the resulting documentary to a commercial cable or broadcast television outlet.¹

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary's integrity and impartiality (see 22 NYCRR 100.2[A]). In the performance of judicial duties, a judge must not be swayed by partisan interests, public clamor or fear of criticism (see 22 NYCRR 100.3[B][1]) and must, among other things, require order and decorum in proceedings before the judge (see 22 NYCRR 100.3[B][2]). A judge must be patient, dignified and courteous to those with whom the judge deals in an official capacity, and must require similar conduct of those subject to the judge's direction and control (see 22 NYCRR 100.3[B][3]). A judge also must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]) and, more specifically, a full-time judge may not be an "active participant of any business entity" (22 NYCRR 100.4[D][3]).²

         The Committee has previously advised that a full-time judge may not participate in a commercial television production intended to result in a television drama series based upon the judge's judicial experiences and life, for which the judge would receive compensation (see Opinion 94-116 [Vol. XIII]). The Committee reasoned that the Rules "forbid[] a full-time judge from being an active participant in any form of business enterprise organized for profit, which, in this case, would include serving as an advisor" (id. see also; 22 NYCRR 100.4[D][3]; Opinion 08-25 [a full-time judge should not advise a comedian on how to portray a judge on a commercial television show]). For similar reasons, the Committee advised that a full-time judge should not participate in a short interview for an educational video production that is being produced by a commercial television production company for sale to schools and libraries (see Opinion 01-86; see also Opinion 09-182 [a full-time judge should not participate in a videotaped interview to be used as part of a documentary that would accompany a criminal justice textbook, where the video will be produced by a for-profit organization]).

         In each of those prior Opinions, the judge proposed to undertake extra-judicial activity that rendered the judge an "active participant" in a business enterprise organized for profit, whether by serving as an advisor (see Opinions 08-25; 94-116 [Vol. XIII]) or by participating in an interview (see Opinions 09-182; 01-86).

         In contrast, the arraigning judge will merely perform his/her regular judicial duties, for his/her regular judicial salary, while being filmed. The arraigning judge will not be interviewed for the program (cf. Opinions 09-182; 01-86) and will not provide advice about portraying a judge (cf. Opinion 08-25) or about how to dramatize a judicial proceeding (cf. Opinion 94-116 [Vol. XIII]).

         Under the specific circumstances presented, the Committee concludes that the mere presence of a for-profit video production team filming ordinary courtroom proceedings, with appropriate administrative approvals under Part 29 (see 22 NYCRR 29.1), will not transform the arraigning judge into an "active participant" in a business enterprise. Accordingly, the inquiring administrative judge and the arraigning judge may permit the video production team to film arraignment proceedings. However, the arraigning judge must not allow the filming process to interfere with the proper conduct of the proceedings (see e.g. 22 NYCRR 100.3[B][1]-[3]). The Committee further notes that, if any legal questions are raised by the proposed filming of arraignments, such matters are beyond the Committee’s jurisdiction (see Judiciary Law §212[2][l]; 22 NYCRR 101.1).

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     ¹ The inquiring judge speculates that the court "would have virtually no control of how the [video footage] would be used or incorporated in this program." While it is possible that the resulting video might be used in an objectionable manner (see Opinions 01-86; Opinion 90-157 [Vol. VI]), the Committee assumes that the Office of Court Administration has already assessed such risks in the context of authorizing the program. If the judge becomes aware that the video is being used in a way that the judge considers improper, he/she may seek the Committee’s advice about his/her ethical obligations, if any, under the facts presented.

     ² The Chief Judge of the Court of Appeals temporarily suspended Section 100.4(D)(3) of the Rules Governing Judicial Conduct, subject to a case-by-case conflict check by the Office of Court Administration’s Counsel’s Office, on September 21, 2010. Neither this section of the Rules nor the suspension is implicated here where the inquiring judge will not receive compensation for participating in the proposed filming.