Opinion 16-83

June 16, 2016

Digest:        A part-time judge may portray a judge in a for-profit film, provided the role does not detract from the dignity of judicial office.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(D)(1)(a)-(c); 100.4(D)(3); 100.6(B)(4); Opinions 14-26; 07-79; 05-149; 99-145; 99-86; 96-134.

Opinion:

         A part-time judge asks if he/she may appear in an independent commercial film about a person, long since deceased, who was convicted of a serious crime over forty years ago.¹ He/she is to portray the judge who presided in the person’s high-profile case; he/she is not certain if any compensation will be offered.

         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]). The prohibition on serving as an advisor, employee or “active participant” of any business entity applies, by its terms, only to full-time judges (see 22 NYCRR 100.4[D][3]). A part-time judge may generally accept private employment, provided it is not incompatible with judicial office and does not conflict or interfere with proper performance of the judge’s duties (see 22 NYCRR 100.6[B][4]; 100.4[A][3]; see also generally 22 NYCRR 100.4[D][1][b]-[c]; 100.4[A][1]). Of course, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) and must avoid financial or business dealings that may reasonably be perceived to exploit the judge’s judicial position (see 22 NYCRR 100.4[D][1][a]). Moreover, a judge’s extra-judicial activities must not detract from the dignity of judicial office (see 22 NYCRR 100.4[A][2]).

         Since a part-time judge may engage in a relatively broad range of commercial activities, the Committee has advised a part-time judge may pursue “extra-judicial employment as a free-lance actor, provided that such activity does not detract from the dignity of judicial office or interfere with the proper performance of judicial duties” (Opinion 07-79).² Thus, he/she too may portray a judge in a for-profit film, if the portrayal is consistent with the dignity of judicial office, and may accept compensation if offered.

         However, any promotion of the film must not exploit the judge’s judicial position (see 22 NYCRR 100.2[C]; 100.4[D][1][a]; Opinions 05-149; 99-145).

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            ¹ Although “a matter remains ‘pending or impending’ at least until the time for appeals has expired and often longer” (Opinion 14-26), it appears safe to assume this matter is completely resolved. Thus, the Committee need not now consider whether and how the public comment rule might apply (see 22 NYCRR 100.3[B][8]).

            ² By contrast, a full-time judge may not act in a commercial film or television program, even if uncompensated (see Opinions 99-86; 96-134).