Opinion 11-97

September 15, 2011

Digest:         A judge may provide a quote for use in the annual report of a not-for-profit organization which offers a program to which the judge makes referrals, where the quote highlights the need for such programs generally without naming or promoting the specific organization, provided the judge takes reasonable steps to ensure the judge’s judicial position is not exploited by others for fund-raising or promotional purposes.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i); 100.4(C)(3)(b)(iv); Opinions 11-54; 09-186; 06-105; 05-56; 93-74(Vol. XI).

Opinion:

         A judge asks whether he/she may provide a quote for use in a not-for-profit organization’s annual report. The judge states the organization designed a program for the judge’s specialized court “which we require all participants to attend” as part of a treatment program, although members of the public who are not litigants may also attend. The judge states that his/her proposed quote “highlights the need for such a program” from his/her perspective as a judge, but “does not specifically endorse” this particular organization’s program.

         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 must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]; 100.4[C][3][b][iv]) and may not personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]).

         Although the Committee has not addressed this precise issue before when considering similar issues, the Committee generally has focused on whether the judge’s quote would be used for fund-raising or other impermissible purposes, and whether there would be an appearance that the prestige of judicial office is being used to advance the private interests of the organization.

         In Opinion 93-74 (Vol. XI), a judge asked whether he/she could permit the publisher of a magazine that focuses on issues of concern to adoptive families to use an excerpt from a letter the judge had written, which expressed the judge’s appreciation of the magazine based on the judge’s personal experience as an adoptive parent (see id.). The judge emphasized in the inquiry that the quote would be used in an annual report which “is used only to report annual finances and give a synopsis of services provided,” and “is not used for fund-raising purposes” (id.). The Committee advised that the judge could be quoted in the annual report, “provided that all references to judicial status are omitted, and that the report is not used for fund-raising purposes (id.).”

         In Opinion 09-186, a judge who wished to reside for one month in an artists’ colony asked whether his/her name, biography and photograph could be included in the colony’s annual report along with those of all other participants. The Committee advised that the judge’s name may be listed in the annual report and that the judge may even permit the administrators to mention his/her judicial status as part of the judge’s biography, because “a judge who is participating in a permissible extra-judicial activity is not required to hide his/her identity as a judge” (id. quoting Opinion 06-105). However, the Committee further advised that the judge should “take reasonable steps” to ensure that the judge’s judicial position is not exploited by others for fund-raising or promotional purposes (see Opinion 09-186; see also 22 NYCRR 100.2[C]).

         By contrast, in Opinion 05-56, a not-for-profit organization had created a nursery that was designed to provide temporary child care on short notice in the judge’s community. At an event on behalf of the nursery, the judge had expressed his/her view that “[i]t would be wonderful for [litigants’ children] to have a safe place to be while their families navigate complex systems,” and the organization asked for permission to quote the judge in an “informational brochure” which would not contain any express solicitation of funds. The Committee advised that the judge should not grant such permission because the judge would almost certainly be identified by reference to judicial office, rather than simply by name, and because it seemed evident that the brochures were intended to serve a promotional function.

         Finally, in Opinion 11-54, the Committee advised that a judge may not author a quote about a book involving legal issues to be used on a book jacket in conjunction with sale of the book, as “to do so would lend the prestige of judicial office to advance the private interests of another.” The Committee noted that omission of the judge’s judicial title would not warrant a different result.

         The Committee believes that, under the circumstances presented, the proposed quote is permissible. First, the quote would be used in an annual report, a type of document which is designed primarily to report annual finances and activities of an organization, as opposed to an informational brochure or book jacket which is designed primarily for promotional use (compare Opinions 09-186; 93-74 [Vol. XI] with Opinions 11-54; 05-56). There is no indication in the inquiry that this annual report would be designed or used primarily for fund-raising or promotional purposes.

         Second, because the judge’s proposed quote does not identify the organization by name, but instead describes the underlying need for services of the kind that this organization provides, it is clear that the judge’s words are not impermissibly promoting or advancing the private interests of this organization (see generally 22 NYCRR 100.2[C]). To the contrary, a competing not-for-profit organization could conceivably use the identical quote. The fact that the judge’s quote provides a specifically judicial perspective on the need for the services of the type this organization provides does not change the result because the judge has acquired his/her relevant experience with the need for such services in his/her judicial capacity, presiding in a treatment court, and thus it is not inappropriate if the quote reveals the judge’s judicial status. This is in contrast to Opinion 93-74 (Vol. XI) where the judge’s relevant experience was acquired in his/her capacity as an adoptive parent, and thus the judge’s judicial status was not in any way relevant to the judge’s opinion about the magazine.

         Accordingly, the Committee concludes, under these circumstances, the judge may provide a quote for use in the annual report of a not-for-profit organization which offers a program to which the judge makes referrals, where the quote highlights the need for such programs generally without naming or promoting the specific organization, provided that the judge takes reasonable steps to ensure that the judge’s judicial position is not exploited by others for fund-raising or promotional purposes.