Opinion 11-115

October 27, 2011

Digest:         A judge may be profiled in a magazine targeting the legal community where the article will contain photos, a brief biography and the judge’s comments about his/her judicial duties, provided he/she abides by the generally applicable limits on judicial speech and does not permit the article to be used to market or promote the magazine’s sales.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); Opinions 09-83; 09-37; 05-28; 04-117; 97-01 (Vol. XV); Joint Opinion 90-123/90-133 (Vol. VI).

Opinion:

         A judge asks whether he/she may appear in a “profile article” of a magazine targeting the legal community. The article will contain photographs, a brief biography and the judge’s comments regarding his/her judicial duties.¹ The magazine advises the judge that “some of the feature articles about attorneys require payment by the attorneys and/or their firms in order to appear in the magazine,” but that judges need not pay to be included.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]) and may not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]). A judge may nonetheless engage in extra-judicial activities that are not incompatible with judicial office and do not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         The Committee has previously advised that a judge may be featured in a newspaper or magazine article (see Opinions 09-83 [a judge may participate in a local newspaper interview regarding the judge’s tenure on the bench]; 09-37 [a judge may be interviewed and photographed for an on-line commercial magazine article about personal grooming decisions, although the judge should not endorse any particular products, and must otherwise comply with the Rules Governing Judicial Conduct in participating in the interview]; 04-117 [a judge may be interviewed by a friend who wishes to write an article about the judge for submission to a commercial magazine, where the article will primarily focus on the judge’s family, civic and extracurricular responsibilities and will also include a discussion of the judge’s performance of marriage ceremonies]).

         Consistent with prior opinions, the judge’s participation in the profile article may not interfere with the judge’s judicial duties (see 22 NYCRR 100.4[A][3]; Opinion 09-37) and must be consistent with the dignity of judicial office (see 22 NYCRR 100.4[A][2]; Joint Opinion 90-123/90-133 [Vol. VI]). The judge must adhere to all judicial speech limits, including the ban on commenting on pending or impending cases (see 22 NYCRR 100.3[B][8]; Opinions 09-83; 04-117) and on statements that would cast doubt on the judge’s impartiality (see 22 NYCRR 100.4[A][1]; Opinions 09-83; 04-117).

         The judge also must not permit the article to be used to market or promote the magazine’s sales (see 22 NYCRR 100.2[C]; Opinions 05-28 [a judge may write a book review of a work of fiction, but should not permit the author or publisher to use any part of the review to promote the book’s sale]; 97-01 [Vol. XV] [a judge should not write a Foreword to a law book dealing with the judge’s court’s workings and which is a commercial publication intended to earn a profit for the publisher and author]).

         Thus, the Committee concludes that the judge may agree to be profiled as a judge, in a magazine targeting the legal community, provided he/she abides by the generally applicable restrictions on judicial speech and further provided that he/she does not permit the article to be used to market or promote the magazine’s sales.

         Finally, the judge also specifically asks the Committee to consider the fact that the judge is not currently a candidate for elective judicial office. Because there is no indication that the magazine is political in nature, the Committee does not believe the judge’s non-candidate status affects this inquiry’s outcome.

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         ¹The judge does not state whether the magazine will interview and photograph the judge for the article or whether the judge will furnish all materials to the magazine.