Opinion 20-108

September 10, 2020

Digest:       A full-time judge who underwent surgery at a not-for-profit hospital may not participate in a web program concerning performance of the hospital during the pandemic, pursuant to a comprehensive release which authorizes the program’s use of the judge’s name, likeness, picture, image, voice, personality, personal identification information and/or protected health information for any purpose whatsoever in perpetuity.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3);

                 100.4(C)(3)(b)(i); Opinions 17-163/18-03/18-21; 09-186; 01-86.

Opinion:

         The inquiring judge underwent surgery at a large, non-profit hospital. The surgeon invited the judge to participate in a web program regarding the hospital’s performance during the pandemic. The requisite authorization and appearance release describes the program as a “patient story to be shared on Live Webinar for patient education” on the hospital’s website and social media channels. The release contains consent to being “photographed, videotaped, recorded, and/or to have information about [the judge] disclosed and/or transmitted live in connection with production of the program,” authorizes use of the judge’s “name, likeness, picture, image, voice, personality, personal identification information and/or ‘protected health information,’” and gives the hospital, “its subsidiaries, affiliates, licensees, employees, medical staff, agents, academic affiliates ... the right to use and disclose [the judge’s] Information in connection with the production, distribution and promotion of the Program ... in all media and distribution channels of any kind, whether now known or hereafter devised, worldwide, in perpetuity.” The release contains a right of revocation, which would be effective upon receipt of the hospital’s marketing department.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Judicial duties must take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), but a judge may nevertheless engage in extra-judicial activities, if they do not (1) cast reasonable doubt on the judge’s impartiality; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) or lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).

         Although Opinion 01-86 was partially overruled by Opinion 17-163/18-03/18-21, which allows a full-time judge’s uncompensated participation in a commercially-produced documentary in some instances,¹ our concern about the broad language in an appearance release remains unaffected by the later decision. In particular, we noted the judge would be “required to sign a standard appearance release, thereby relinquishing any control over the final product and thus creating the danger that the judge’s contribution may be used in ways that may ‘detract from the dignity of judicial office’... or are otherwise inappropriate” (see Opinion 01-86 [citation omitted]). Along similar lines, we have also said a “judge should take reasonable steps to ensure that the judge’s position is not exploited by others for fundraising or promotional purposes” (Opinion 09-186; 22 NYCRR 100.2[C]).

         Although there is no indication that the hospital’s testimonial program is to be used for fund-raising at this time, it is clear it will be used for promotional purposes, even with the stated purpose of “patient education.” And, since the release places no limit on how the recording is ultimately used, the possibility exists that it could be used for fund-raising in the future. Indeed, the release gives wide latitude to the hospital and its numerous agents and affiliates in how the judge’s “name, likeness, picture, image, voice, personality, personal identification” and health information are used; and such latitude would exist “in perpetuity” unless revoked. In the mean time, the judge completely relinquishes all right to direct or limit how their participation in the program is utilized.

         Accordingly, we conclude the judge may not participate in the hospital’s web program.

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¹ That is, Opinion 01-86 was overruled or modified by Opinion 17-163/18-03/18-21, to the extent it prohibits a full-time judge from participating in a commercially produced documentary without compensation.