Opinion 21-170
December 2, 2021
Digest: A judge who completed a mediation skills program at a law school’s mediation clinic may permit the clinic to post the judge’s comments about the course and the judge’s experiences with alternative dispute resolution on its Instagram account for general advertising and recruitment efforts, provided the judge is satisfied the judge’s name, words, and image will not be used for fund-raising.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1); 100.4(B); 100.4(C)(3)(b)(i), (iv); Opinions 18-61; 16-12; 14-93; 02-21; 91-19; 88-79.
Opinion:
The inquiring judge serves on an alternative dispute resolution (ADR) advisory committee and recently took a mediation skills training course at a local law school. The director of the law school’s mediation clinic has asked the judge to “provide a photo and a few remarks about [the judge’s] work in ADR as well as [the judge’s] experience during the mediation skills training” for posting on the mediation clinic’s Instagram account.1 The judge asks if this is permissible.
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]). As a general rule, a judge may teach, write and speak on matters concerning the law, the legal system, and the administration of justice (see 22 NYCRR 100.4[B]) provided, however, that such activity or participation does not implicate other ethical prohibitions, such as casting reasonable doubt on the judge’s capacity to act impartially (see 22 NYCRR 100.4[A][1]) or lending the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]). Moreover, a judge may not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) and must not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][iv]).
Balancing the various rules and interests involved, we have said that a judge may assist in “[t]he recruitment of outstanding students for an academic institution” (Opinion 91-19). Thus, for example, a judge may allow their name, photograph and biography to be used by their alma mater in an advertising campaign to encourage the recruitment of students (see Opinion 02-21) and/or in a brochure designed “to advertise to the public and prospective employers of the university’s students and graduates, the high caliber and high achievements of the university’s alumni and alumnae” (Opinion 88-79). Similarly, a judge may participate in their college alma mater’s recruitment efforts “by participating in a video recording in which the judge will discuss his/her memories of the college and its impact on his/her career and provide a message to this year’s graduates” (Opinion 14-93).
Here, the judge, as a former student who has recently completed this law school’s mediation skills training course, is being asked to share remarks about the judge’s work with ADR and the judge’s experience with the course for posting on the law school mediation clinic’s Instagram account. Consistent with prior opinions, we believe the judge may participate in the law school’s recruitment efforts by sharing the judge’s personal experiences in this manner (see Opinions 18-61; 14-63; 02-21).
Accordingly, the judge may permit the law school’s mediation clinic to post the judge’s photo and remarks about the course and the judge’s experiences with ADR on the clinic’s Instagram account for general advertising and recruitment purposes, provided the judge is satisfied the judge’s name, words, and image will not be used for fund-raising.2 Of course, “the judge should seek to insure that his/her participation in the advertising program meets such concerns, and thus should exercise oversight as to use and presentation of the materials” (Opinion 02-21; see also Opinion 18-61 [“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.”]).
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1 Instagram is an online social networking service, like Facebook or Twitter, but with a greater focus on mobile sharing of photos and videos.
2 For example, the judge must not personally solicit funds for the law school or its mediation clinic, nor authorize use of their name or image for any fund-raising campaign (see 22 NYCRR 100.4[C][3][b][i], [iv]). We decline to comment on the judge’s proposed statement, as we are “not in a position to review, edit or otherwise approve/disapprove” judges’ particular writings (Opinion 16-12).