Opinion 16-37

March 16, 2016

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:         Subject to certain limits, a full-time judge may enter an option/purchase agreement for his/her screenplay.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1); 100.4(H)(2); 100.4(I); Opinions 15-182; 14-67; 09-192/09-231; 09-182; 08-25; 06-135; 06-105; 05-149; 01-86; 99-145; 89-22.

Opinion:

         A full-time judge wrote a screenplay about his/her childhood and prior career in a private law practice. The screenplay does not discuss his/her judicial or extra-judicial activities. A producer offered to pay the judge for option rights to the screenplay. The judge asks if he/she may enter an option/purchase agreement permitting the producer to promote the screenplay with an intent to adapt it into a feature film or television series. If the option is exercised and the screenplay is produced as a film or television series, the judge would receive writer’s fees, co-executive producer compensation, and royalties. The judge says the production will be “a corporate entity providing me with an equity stake,” although the judge expects his/her actual participation to be “passive,” despite the payment category and title “co-executive producer.”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and may not lend the prestige of judicial office advance his/her or another’s private interests (see 22 NYCRR 100.2[C]). A judge may engage in extra-judicial activities that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Such permissible extra-judicial activities include writing, subject to other provisions of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]).

         For example, a judge may not publicly comment on “a pending or impending proceeding in any court within the United States or its territories” (see 22 NYCRR 100.3[B][8]), and a full-time judge must not serve as “an officer, director, manager, general partner, advisor, employee or other active participant of any business entity” unless a specific exception applies (22 NYCRR 100.4[D][3]). A full–time judge may receive compensation for engaging in permissible extra-judicial activities “if the source of the payments does not give the appearance of influencing the judge’s performance of the judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]) but must report “the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received” as provided by the Rules (see 22 NYCRR 100.4[H][2] [report “shall be made at least annually and shall be filed as a public document in the office of the clerk of the court on which the judge serves”]).

         This Committee previously advised that a judge may engage a publisher or marketing firm to act as intermediary to sell his/her works of fiction, or to sell his/her art work on commission (see Opinions 09-192/09-231; 06-105; 99-145). While a judge may authorize another person or entity to promote his/her fiction writing and may permit such work to be made into a commercial television series (see Opinion 15-182), a full-time judge may not actively participate in any business enterprise, including in a commercial television series (see 22 NYCRR 100.4[D][3]; Opinions 15-182; 05-149).

         For example, a full-time judge may not participate in a commercial television show by being interviewed on camera, hosting the show, or serving as a paid or unpaid consultant (see Opinions 15-182; 09-182; 08-25; 01-86; 89-22). By contrast, a full-time judge may acquire a limited partnership interest in an entity created to manage and invest the capital contributions of the general and limited partners, where the judge’s role, as a limited partner, is “passive and restricted to making financial investment contributions to the partnership” (Opinion 06-135). Also, a judge must not permit his/her judicial position to be exploited in promoting the published work (see Opinions 06-105; 99-145).

         This full-time judge has no intention to personally promote the screenplay and anticipates his/her role will be entirely passive. Provided the judge’s role is indeed passive, both during the marketing of the screenplay and, if the option is exercised, during the production stages, he/she may enter into an option/purchase agreement permitting a producer to promote his/her screenplay and its adaptation into a television series or feature film (see 22 NYCRR 100.4[D][3]; Opinion 06-135 [noting that a full-time judge “may not actively partake in the operation of the partnership and in investment decisions”]). As for the proposed pay as “co-executive producer,” the Committee has previously noted that the term “executive producer” does not have a precise meaning in the entertainment world and found no per se objection to a judge’s use of that term in connection with the production of a music CD (see Opinion 05-149). Here, too, the title “co-executive producer,” without more, does not render the judge’s participation impermissible. If the judge’s compensation exceeds $150, the judge must report it (see 22 NYCRR 100.4[H][2]).¹

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         ¹ To the extent the compensation meets the Part 40 reporting threshold, the judge should also contact the Unified Court System’s Ethics Commission for guidance on whether and how to include it on the judge’s annual statement of disclosure (see Opinion 14-67; 22 NYCRR 100.4[I]; contact: Ethics Commission: 1-212-428-2899).