Opinion 19-53

May 2, 2019

Digest:         A judicial candidate must not use a photograph of strangers that falsely implies the individuals depicted endorse the candidate

Rules:          22 NYCRR 100.5(A)(2); 100.5(A)(2)(ii)-(iii); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(ii); Opinions 12-129(A)-(G); 12-114; 07-137; 07-136; 07-89; 96-07.

Opinion:

         An elected judge in his/her window period for re-election asks if he/she may use a stock photograph of strangers along with a banner that reads “Re-Elect Judge [Name] for Us!” on his/her campaign materials.

         A judge or non-judge judicial candidate may participate in his/her own campaign for elective judicial office during the applicable window period as permitted by the Rules Governing Judicial Conduct (see 22 NYCRR 100.5[A][2]). All statements made in judicial campaigns must be dignified and consistent with the integrity, impartiality, and independence of judicial office, and they must be accurate and must not misrepresent factual information or present it in a misleading manner (see Opinions 12-129[A]-[G]; 07-135; 04-16; 22 NYCRR 100.5[A][2][ii]; 100.5[A][4][a]; 100.5[A][4][d][i]-[ii]). Subject to these and other limitations, a judicial candidate may appear in media advertisements supporting his/her candidacy (see 22 NYCRR 100.5[A][2][ii]); distribute promotional campaign literature supporting his/her candidacy (see id.); and appear in media advertisements with other candidates on his/her slate (see 22 NYCRR 100.5[A][2][iii]).

         While we have previously advised that a judicial candidate may use photographs of family members in campaign advertisements (see e.g. Opinions 07-136; 96-07) as well as some published photographs of the candidate and others in official settings (see e.g. Opinions 07-137 [hosting formal court visitors while court is not in session]; 07-89 [being sworn in as a judge]), we have not previously addressed a judicial candidate’s use of photographs of complete strangers. Nevertheless, Opinion 12-114 is instructive.

         There, we addressed a judicial candidate’s use of a photograph taken at a social event with an elected local public official who is not part of the candidate’s slate and who has not endorsed the candidate (see Opinion 12-114). We advised that such use was ethically impermissible, unless the official consents to use of the photograph in the judicial candidate’s campaign. We explained that the candidate’s use of the photograph reasonably implied a connection between the candidate and the official and conveyed the impression that the public official had “reached across the aisle” to endorse the judicial candidate –- an impression that was false under the facts presented (id.). We also noted that the public would also likely assume that the local public official shown in the photograph had explicitly or implicitly authorized the candidate’s use of the photograph, which the official had not done (see id.).

         Here, we believe a similar rationale applies. The candidate’s proposed use of a photograph depicting complete strangers falsely implies that he/she is associated with the persons depicted in the photograph. In context, the public will likely assume those depicted have endorsed him/her and have authorized this political use of the photograph.¹ Furthermore, the candidate’s proposed language, “Re-Elect Judge [Name] for Us!” very directly suggests that those depicted support the candidate, even though they have never met or communicated. We conclude use of this photograph is likely to be misleading and inaccurate and is therefore ethically impermissible (see e.g. Opinions 12-114; 22 NYCRR 100.5[A][4][d][i]-[ii]).

         We cannot comment on other issues not currently before us, nor on any potential legal questions.

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¹ Conversely, a judicial candidate’s use of “published photographs of him/herself performing duties connected with his/her office” is unlikely to be misleading, “as the other participants in the court visit or the swearing-in ceremony are appearing in specific roles appropriate to the occasion” (Opinion 12-114 n2 [discussing Opinions 07-137 and 07-89]).