Opinion 20-49

March 19, 2020

Digest:         A full-time judge may volunteer as a disc jockey for a not-for-profit college radio station.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(C)(3); 100.4(C)(3)(b)(I), (iv); 100.4(D)(3); 100.5(A)(1); Opinions 16-63; 16-05; 09-192/09-231.

Opinion:

         A full-time judge previously volunteered at a non-commercial college radio station and wishes to do so in the future. The judge’s two-hour weekly program would air on weekend afternoons and feature music in the “classic rock” genre. The program would include occasional public service announcements, such as reminding people to vote on Election Day and informing students about on-campus events. The judge would not engage in any political discussions or commentary, would not participate in any fund-raising, and would not identify him/herself as a judge.

         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’s extra-judicial activities must be compatible with judicial office and must not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge may not be an “active participant of any business entity” (22 NYCRR 100.4[D][3]) but may participate in a not-for-profit educational, cultural, or civic organization (see generally 22 NYCRR 100.4[C][3]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]; 100.4[C][3][b][iv]) nor personally participate in soliciting funds or other fund-raising activities (see 22 NYCRR 100.4[C][3][b][I]). A judge also must not “directly or indirectly engage in any political activity” unless an exception applies (see 22 NYCRR 100.5[A][1]) and must not comment publicly on “a pending or impending proceeding in any court within the United States or its territories” (22 NYCRR 100.3[B][8]).

         A full-time judge may engage in non-commercial avocational activities such as music or dance as a hobby (see generally Opinion 09-192/09-231) or participate in a non-commercial podcast concerning science fiction and comic book characters and legal issues that may arise in fictional works (see Opinion 16-05). Here, too, we see no impropriety in the judge’s proposed role as a volunteer disc jockey at a non-commercial college radio station. The judge’s participation is, of course, subject to generally applicable limitations on judicial speech and conduct, including the public comment rule (see 22 NYCRR 100.3[B][8]) and prohibitions on political activity and fund-raising (see 22 NYCRR 100.4[C][3][b][I]; 100.5[A][1]). As the judge expressly mentioned reminding people to vote on Election Day, we note this is permissible, provided it is strictly non-partisan (see Opinion 16-63 [part-time attorney judge may publicly display on his/her office building a non-partisan banner stating “Your vote counts in ___ County”]).