Opinion 18-126

September 6, 2018

Digest:         (1) A full-time judge may not consent to an interview that will be posted exclusively on a private law firm’s website. Learning his/her interview has nonetheless been posted on a law firm’s website, the judge must instruct the firm to remove the post. (2) A judge may not subscribe to a law firm’s blog, even using a personal email address.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(3); Opinions 18-34; 16-05; 15-148; 10-138; 09-92; 03-69; 01-58.

Opinion:

         A full-time judge who participated in an interview with an active bar association member recently learned the interview was posted exclusively on a private law firm’s blog, instead of a bar association publication as the judge expected.¹ He/she promptly asked the firm to remove the blog post from its website while seeking guidance concerning the interview’s propriety and its blog post. The firm litigates cases in the judge’s specialized court, but the judge now has no cases involving this firm. The public may freely view the blog on the law firm’s website and/or subscribe to the blog by registering online. Subscribers must provide a name, mailing address, and a firm email address, and must consent to the firm storing their contact information “in order to send the electronic marketing mailings for which you have subscribed.” The judge also provides printouts of several blogs maintained by law firms that practice in the judge’s court, and asks if he/she may subscribe to such blogs using a personal or court email address.

         A judge must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must always avoid even the appearance of impropriety (see 22 NYCRR 100.2). Further, a judge must not lend the judicial office’s prestige to advance any private interest or convey an impression that others “are in a special position to influence the judge” (22 NYCRR 100.2[C]). A full-time judge also must not be an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D][3]).

         As the legal community continues to increase its online presence in a wide variety of formats, the question is not whether a judge may participate in blog posts, podcasts, social media, or the like, but how he/she does so (see e.g. Opinions 18-34; 16-05; 10-138). For example, a full-time judge or quasi-judicial official may participate as an unpaid guest in a non-commercial podcast about legal issues, subject to generally applicable limitations on judicial speech and conduct (see Opinion 16-05), but may not appear on a private law firm’s podcast (Opinion 18-34 [noting the host attorney appears before the judge “from time to time”]).

         We consider several factors to decide whether a judge’s role in a blog or podcast could create an appearance of impropriety or perceived favoritism (see 22 NYCRR 100.2; 100.2[C]). For example, we may consider if the judge is compensated for participation (see Opinion 16-05), whether the material is accessible to the public (see e.g. Opinions 15-148 [judge who represented a particular category of litigants in the specialized court where he/she now sits “may not remain on the e-mail list for a former colleague’s summaries, commentary, and compilations of recent cases, if this resource is unavailable to the Bar or public”]; 09-92 [judge “may not present an in-house CLE program for lawyers and paralegals employed by his/her former law firm”]; 01-58 [judge must “not provide instruction in legal writing and advocacy skills to a law firm's associates”]), and whether the sponsor or host appears before the judge (cf. Opinion 03-69 [judge should not consent to the judge’s law clerk co-authoring articles with an attorney whose law firm litigates frequently before the judge in the area of the law covered by the proposed articles]). As to full-time judges, a key factor is whether the sponsor is a private law firm (see Opinions 18-34; 01-58).

         We recently advised a full-time quasi-judicial official not to appear on a private law firm’s free podcast (see Opinion 18-34). While we recognized the podcast was “not, in and of itself, a profit-making venture,” we emphasized “we can only presume a for-profit law firm which prepares and distributes [material] to the public on its website and elsewhere does so for commercial reasons, i.e. primarily for marketing or promotional purposes” (Opinion 18-34). We believe Opinion 18-34 is controlling. Here, too, the interview would be freely available to the public as a blog post on the law firm’s website. Again, the judge’s interview would become part of the firm’s online marketing presence and thus would serve the exclusive interest of the firm (see Opinions 18-34; 01-58). In short, the interview could be viewed as lending the prestige of judicial office to advance the law firm’s private interests and may convey the impression the firm is in a special position to influence the judge or his/her colleagues in a specialized area of law (id.).

         This judge participated in an interview with an active bar association member, apparently under the mistaken impression the interview would be published in a bar association newsletter. As the judge has learned the interview was instead published on a private law firm’s blog, he/she must instruct that firm to remove the blog post permanently. Once the judge made the request, no further action is required.

         As for subscribing to a law firm’s blog using a personal or court email address, we previously said a judge may not remain on the e-mail list prepared by “one side” in a specialized court, where the list is not generally available to the public or the bar (see Opinion 15-148). Here, various private law firms that practice in the judge’s specialized court invite the public to subscribe to their blogs. Interested members of the public may “subscribe” to each firm’s blog by providing contact information such as first and last name, company name, mailing address, and email address, and must consent to the delivery of “electronic marketing mailings” as a condition of subscription. Thus, we believe the judge should not subscribe to such blogs, using either a personal email address or a court email address, as the judge’s registration with selected law firms and affirmative consent to receive those firms’ marketing materials could convey the impression that such chosen firms are in a special position to influence the judge or his/her colleagues (id.; 22 NYCRR 100.2[C]). We believe the appearance of impropriety is not alleviated by use of the judge’s personal email address rather than his/her official court email address.

         For clarity, we note that merely visiting a law firm’s blog, without registering or subscribing, does not raise similar concerns.

________________________

¹ The interview took place in the judge’s courtroom during regular business hours, and was effectively open to the public although not advertised or announced.