Opinion 21-31

March 11, 2021

Digest:       A judge may not provide a biographical video for use in a not-for-profit organization’s social media campaign, where the required release and the overall context create an impression that the judge’s video will be used to promote the organization and its gala fund-raising event.

Rules:        22 NYCRR 100.2; 100.2(C); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 20-108; 17-94; 17-12; 16-152; 15-133; 15-125; 11-136; 11-97; 05-56.

Opinion:

         A full-time judge asks if they may participate in a not-for-profit civic, cultural or fraternal organization’s social media campaign in the weeks leading up to its gala fund-raising event. The social media campaign is intended to raise awareness of the organization and to inspire the “next generation” of leaders within an ethnic/gender group by sharing community members’ success stories.¹ To participate, the judge would need to create a short video sharing their professional achievements, with a theme of “overcom[ing] adversity to reach success.” The video would be posted to the organization’s website and/or social media accounts with the proposed hashtag, and the judge would need to sign a general release form granting the organization broad permission to use their video and photograph along with their name and title.² The organization will also show some of the videos at the gala fund-raiser, although we understand it will not include a video over its creator’s objection.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge may “assist” a not-for-profit civic, fraternal or cultural organization “in planning fund-raising” (22 NYCRR 100.4[C][3][b][i]) but may not “personally participate in the solicitation of funds or other fund-raising activities” (id.). A judge generally may not be “a speaker or the guest of honor” at an organization’s fund-raising event but may attend and accept “an unadvertised award ancillary to such event” (22 NYCRR 100.4[C][3][b][ii]). A judge also may not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).

         Judges may publicly discuss their personal and professional experiences both as a judge and as a member of a particular gender, ethnicity or race, subject to generally applicable rules governing judicial speech and conduct (see e.g. Opinions 17-94 [a judge may be a guest of honor at a non-profit organization’s cultural event, and permit a video to be recorded, provided that the initial appearance and the video will not be used for fund-raising purposes]; 17-12 [judge may speak at an event for an organization with a religious affiliation about experiences as a judge]; 15-133 [judge may speak at consulate event about experiences as a judge of a particular gender and ethnicity]; 15-125 [judge may speak about prior professional experience at an academic conference regarding human rights]).

         However, such activity or participation is barred when it implicates other ethical prohibitions, such as the limitations on fund-raising or lending the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]; 100.4[C][3][b][i], [iv]). The focus is 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” (Opinion 16-152). Thus, we said a judge may not participate in a videotaped interview on behalf of a re-entry agency, which will be shown at the agency’s fund-raising event (see id.).

         In some instances, this prohibition applies to the judge’s participation in an activity that is not directly involved in fund-raising if the circumstances evince a clear risk of indirect participation in impermissible fund-raising or promotional activities. For example, 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 (see Opinion 20-108; compare also Opinion 05-56 [judge may not provide a quote concerning court users’ need for daycare services for use on a not-for-profit daycare organization’s informational brochure, when it is “not unreasonable to conclude that such brochures … are intended to serve a promotional function”]; with Opinion 11-97 [judge may provide a quote regarding the need for the types of services that are provided by a non-profit organization, without naming or referencing that organization, strictly for use in its annual report]).

         Here, we recognize the proposed short biographical video, in and of itself, is not directly related to fund-raising nor would its content be generally proscribed. However, the full context of the social media campaign creates an impression that the judge’s video will be used to promote the organization and its gala fund-raiser. We have considered the timing of the video posts (i.e. in the weeks leading up to the fund-raiser), the planned use of some videos during the fund-raiser, and the general release specifically authorizing use of participants’ names, images, and titles for promotional flyers or any similar purpose. Taken together, these factors lead to the reasonable conclusion that the biographical videos will be used to promote and raise funds for the organization. Therefore, the judge may not participate in the organization’s social media campaign.

         Finally, we understand that the organization might be willing to use the judge’s proposed biographical video as part of a continuing social media campaign after the organization’s gala fund-raiser if the judge cannot participate beforehand. The purpose of the video in the post-gala context would apparently be to inspire and celebrate the success of members of an ethnic/gender group through the organization’s digital platforms for the remainder of the year, rather than to solicit funds. As we understand the judge’s video would appear on the organization’s website underneath a “donate” link in large font, and the release form would still authorize use of the judge’s video, photograph, name and title for promotional purposes, we believe participation remains impermissible (see Opinion 20-108).³

____________________

¹ The campaign will be branded with a hashtag (a phrase starting with the # symbol) that reflects the organization’s goal of inspiring the community. Use of a hashtag facilitates searching; once a hashtag has been created for a particular topic, any user may associate their social media post with the same topic by using the same hashtag.

² The release grants the organization “the irrevocable right and permission to use photographs and/or video recordings of me” on websites, promotional flyers, or “for any other similar purposes,” agrees “that I may be identified by name and/or title,” and expressly “waive[s] the right to approve the final product.” It also seems to vest the organization with full ownership rights to the images.

³ Notwithstanding our conclusion here, we note that a judge who is a director of a not-for-profit organization may permit their name to be listed along with the other directors on the organization’s website, “even if the border of each page of the website contains links that solicit donations” (Opinion 11-136).