Opinion 13-158

December 12, 2013

Digest:         Subject to certain limitations, a judge may participate in creating and producing a video to provide information about the history and “current capabilities” of the court where the judge serves. He/she may also invite other judges to appear in the video.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 10-206; 09-79; 06-117; 01-86; 00-31 (Vol. XIX); 98-141 (Vol. XVII).

Opinion:

         The Chief Judge appointed the inquiring judge to serve on a committee concerned with the operations of the judge’s court. The committee seeks to produce a video about the court which will provide some “historical information” about the court and emphasize the court’s “current capabilities.” The judge asks whether he/she may participate in the video and whether he/she may solicit other judges to participate in the video. The committee will work with a not-for-profit organization that functions as a bar association.¹ Production of the video will be funded by contributions made directly to the bar association. The judges will not be involved in any fund-raising for the video.

         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]). While a judge may engage in extrajudicial activities such as lecturing or teaching (see 22 NYCRR 100.4[B]), the activities must not be incompatible with judicial office nor (1) cast reasonable doubt on the judge’s capacity to act impartially; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge may not personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]) and may not permit the use of the prestige of judicial office for fund-raising solicitation (see 22 NYCRR 100.4[C][3][b][iv]). However, a judge may be the speaker or guest of honor at a bar association’s fund-raising event (see 22 NYCRR 100.4[C][3][b][ii]). Among other limitations on judicial speech, a judge must not publicly comment on a pending or impending proceeding in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]).

         The Committee has addressed judicial participation in film and video production in several contexts. For example, a full-time judge must not participate in an educational video production about the judicial branch of government that is being produced by a for-profit entity (see Opinion 01-86).

         However, a judge may be interviewed for a documentary film produced by a not-for-profit organization about a well-known prosecutor (see Opinion 10-206); may participate in a video production, organized by certain governmental and religious organizations, to be screened for students at a local high school to discourage them from driving while intoxicated, using illegal drugs, and smoking (see Opinion 09-79); and may participate in a video production of a not-for-profit group intended to educate teenagers about the court system and police procedures (see Opinion 98-141 [Vol. XVII]).

         Even when the video will be shown at a fund-raising event, the Committee has advised that a judge may appear in a not-for-profit organization’s non-fund-raising video in honor of certain local professionals where the “clip will show the judge at work, with the judge’s name and title printed on the screen” (Opinion 00-31 [Vol. XIX]). The Committee emphasized that there must be “no reference ... to the judge or the video in advertising the luncheon or in soliciting attendance or contributions” and that the content of the video must not relate to fund-raising (id.).²

         Thus, under the circumstances presented, the Committee concludes that the inquiring judge may participate in creating and producing a video to provide information about the history and “current capabilities” of the judge’s court and may invite other judges to participate. Of course, each participating judge must comply with all applicable judicial speech limitations, including the public comment rule (see 22 NYCRR 100.3[B][8]; Opinion 10-206) and the rule against ex parte communications (see 22 NYCRR 100.3[B][6]). The judges also may not personally participate in soliciting funds (see e.g. 22 NYCRR 100.4[C][3][b][i], [iv]), and their participation must not detract from the dignity of judicial office or cast reasonable doubt on their capacity to act impartially (see Opinion 10-206; 22 NYCRR 100.4[A][1]-[3]).

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     ¹ The Committee “has adopted an inclusive definition of ‘bar association,’ encompassing a wide variety of legal organizations which are composed of members of the bar and whose purpose is to promote and improve the law, the legal system and the administration of justice” (Opinion 06-117).

     ² Opinion 00-31 (Vol. XIX) notes that “the judge will not be speaking on the video” to be played at a YWCA’s fund-raiser. Because the video in the present inquiry will be played at a bar association’s event, the prohibition on a judge serving as a “speaker” does not apply (see 22 NYCRR 100.4[C][3][b][ii]).