Opinion 13-84

June 13, 2013

Digest:         A full-time judge may be a shareholder in a closely held consulting business owned by the judge’s non-attorney spouse, and may also be included in a family photograph that will be posted on the website or other advertisements for that business, provided that no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(2); 100.4(D)(3); 100.4(D)(3)(b); Opinions 09-85; 06-94; 04-41; 04-37; 04-02; 00-75 (Vol. XIX); 96-07 (Vol. XIV).

Opinion:

         The inquiring full-time judge states that his/her non-attorney spouse owns a closely held consulting business. Although the judge’s spouse consults on a “diverse” range of subjects, the judge states that his/her spouse “is not [a] lobbyist” and “does not consult on substantive legal matters.” The judge asks if the judge may be included in a family photograph¹ that will be posted on the website or other advertisements for the business, and further asks if he/she may be a shareholder in the business.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, 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]). Although a judge may generally hold and manage investments of the judge and members of the judge’s family (see 22 NYCRR 100.4[D][2]), a full-time judge must not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity, subject to certain exceptions inapplicable here (see 22 NYCRR 100.4[D][3]).²

         Applying these principles, the Committee has previously advised that a full-time judge may continue to hold stock in a closely held corporation, even though he/she may not remain as an officer, or be a director, manager, general partner, advisor, or employee of the business or otherwise participate in any active management or operation of the entity (see Opinion 04-02). Here, too, the judge may hold stock in his/her spouse’s closely held consulting business.

         With respect to the proposed use of a family photograph to promote the business, the Committee emphasizes that the judge must not be an “active participant” in his/her spouse’s consulting business (see 22 NYCRR 100.4[D][3], Opinion 09-85), and must not lend the prestige of judicial office to advance the private interests of the business (see 22 NYCRR 100.2[C]). However, the Committee has repeatedly advised that a judge may be depicted in a family photograph that will be used in his/her spouse’s political campaign literature, provided that “no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting” (Opinion 04-41; see also Opinions 06-94; 00-75 [Vol. XIX]; 96-07 [Vol. XIV]). Significantly, the Committee has also extended the same reasoning to the judge’s participation in a family photograph that was “reasonably related to the spouse’s employment” as director of a local parochial school, where the “informational brochure describing the school, the programs available and biographical information about the director” had historically included “a picture of the director with his/her family” (Opinion 04-37).

         Here, too, where the judge’s spouse is the principal of his/her own closely held consulting business, the Committee concludes that there is no appearance of impropriety from the judge’s participation in a family photograph that will be used to promote the business, provided that no reference is made to the judge’s judicial title or position and the judge does not appear in a judicial robe or setting.

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     ¹ The judge notes that his/her spouse has not decided which family photograph to use, but is considering one in which the judge’s family appears with a well-known former elected official, in a location associated with that official’s former public office. Alternatively, the judge’s spouse is considering a photograph that shows the judge and his/her spouse together.

     ² For example, a full-time judge may manage and participate in a business entity engaged solely in investment of the financial resources of the judge or members of the judge’s family (see 22 NYCRR 100.4[D][3][b]), but may not do so where (as here) the entity is involved in other business activities (see, e.g., Opinion 09-85).