Opinion 16-152

December 8, 2016

Digest:         A judge may not appear in a videotaped interview on behalf of a re-entry agency, which will be shown at the agency’s fund-raising event.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i), (ii); (iv); Opinions 11-97; 94-90.

Opinion:

         A judge was asked to appear in a videotaped interview with a not-for-profit “transitional reentry agency,” which helps formerly incarcerated individuals “make sustainable changes” to reduce unemployment, recidivism and homelessness as they re-enter their community. The video would be shown at the agency’s upcoming fund-raising event and is intended “to generate interest in [the] agency’s mission.” In the interview, the judge would discuss “the need for alternatives to incarceration” within the judge’s jurisdiction.

         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 private interests (see 22 NYCRR 100.2[C]; 100.4[C][3][b][iv]) nor personally solicit funds or participate in other fund-raising activities (see 22 NYCRR 100.4[C][3][b][i]). Subject to exceptions inapplicable here, a judge also may not be “a speaker” at a not-for-profit organization’s fund-raising events, although he/she may attend them (22 NYCRR 100.4[C][3][b][ii]).

         In considering similar issues, the Committee has focused on whether the judge’s participation would be used for fund-raising or other impermissible purposes and if there would be an appearance that the prestige of judicial office is being used to advance the private interests of the organization (see e.g. Opinion 11-97). Applying these principles, the Committee advised that a judge may not “provide a photograph, a statement against violence, and ... tape a ‘public service announcement’ or ... do a ‘phone-in’” for a local shelter’s fund-raising event, as this would constitute being “a speaker” at the event and would impermissibly lend the prestige of judicial office for fund-raising purposes (Opinion 94-90; see also 22 NYCRR 100.4[C][3][b][i]-[ii], [iv]; 100.2[C]).

         This judge likewise may not appear in a videotaped interview on behalf of a not-for-profit re-entry agency, to be shown at the agency’s fund-raising event.