Opinion 18-61
March 29, 2018
Digest: (1) A judge who attended a private middle school and high school with the assistance of a not-for-profit program that prepares disadvantaged students to attend such schools may be involved in the program’s recruitment efforts just as he/she would for his/her former high school, college, or law school, and therefore may participate in a video recorded interview in which the judge will discuss his/her memories of the program and its impact on his/her career and provide a message to this year’s graduates. (2) The judge may wear judicial robes during the interview but should comply with applicable administrative requirements under Section 29.1 of the Rules of the Chief Judge before permitting any photography or video in the courtroom or chambers. (3) The judge may permit the video to be played at the not-for-profit program’s fund-raiser, provided there is no reference to the judge or the video in advertising the event or in soliciting attendance or contributions. The judge must advise the entity to use the video only for general promotion of the program and/or recruitment of students, but not fund-raising.
Rules: 22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 16-152; 14-93; 11-97; 94-90.
Opinion:
The inquiring full-time judge attended a not-for-profit leadership development program that prepares minority students from impoverished neighborhoods to attend private middle schools and high schools and assists with placements and scholarships. The entity would like to interview the judge for a video with three other “alumni,” which will be played at an annual gala fund-raising event “celebrat[ing] the achievements of [the program’s] graduating high school class.” The video will also be posted on the program’s websites and shown at admissions meetings with prospective families. The video is not itself intended to raise funds but, instead, to promote the program and assist in recruiting students. The judge asks if he/she may participate in the proposed interview as described, and if so, whether the interview may include “footage and photos of me in my robe inside my chambers and courtroom taken when court is not in session.”
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]).
We have advised that a judge must not appear in a videotaped interview on behalf of a re-entry agency, which would be played at the agency’s fund-raising event (see Opinion 16-152). As we explained (id.):
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]).
Nonetheless, the Committee has allowed greater leeway in the context of a judge’s activities on behalf of a college or law school he/she attended. As explained in Opinion 14-93 (citations and internal quotation marks omitted):
the Committee has previously advised a judge may assist in the recruitment of outstanding students for an academic institution. ... As the judge will not be soliciting funds but, instead, will discuss his/her memories of the college, its impact on the judge’s career, and provide a message to this year’s graduates, as permitted by prior opinions, the Committee believes the judge’s proposed involvement in his/her alma mater’s recruitment efforts is not rendered impermissible by the fact that his/her message will be recorded as a video.
We then concluded the judge could permit the video to be played at his/her college alma mater’s fund-raiser, provided there is no reference to the judge or the video in advertising the event, or in soliciting attendance or contributions (id.).
Here, too, although the program is not a traditional standalone educational institution, it nonetheless helps bridge the gap between disadvantaged students’ local public schools and the more prestigious and/or higher performing private schools in which it places them. Its mission is educational and it cultivates a school-like relationship with its participating students by referring to each year’s students as a “class” and those who have successfully completed the program as “graduates” or “alumni.” The program necessarily works closely with the private schools in which it places the students, in order to ensure the students’ post-placement success. We therefore believe the judge may be involved in the program’s recruitment efforts just as he/she would for his/her former high school, college, or law school.
Moreover, just as in Opinion 14-93, it appears the program’s proposed interview with the judge is intended to elicit the judge’s “memories of the [program and] its impact on the judge’s career, and provide a message to this year’s graduates” (Opinion 14-93). Accordingly, the judge may participate in the proposed interview and thereafter permit the video to be played at the program’s fund-raiser, provided there is no reference to the judge or the video in advertising the event or in soliciting attendance or contributions (id.). The judge must not personally solicit funds, and must advise the entity the video may be used only for “general promotion of the [program] and/or recruitment of students, but not fund-raising” (id.).
Finally, although “a judge may not wear judicial robes when welcoming prospective students and their families in person to his/her alma mater’s open house, in order to ‘avoid any implication of official approval or support’ of an on-campus recruitment event” (Opinion 14-93 [citation omitted]), we have “also advised that a judge engaged in permissible recruitment activities for his/her alma mater may identify him/herself as a judge,” including in a permissible video recording (id.). Regarding filming or photography in chambers and/or the courtroom, the judge should comply with applicable administrative requirements under Section 29.1 of the Rules of the Chief Judge (see 22 NYCRR 29.1; Opinion 14-93).