Opinion 22-155

October 27, 2022

Digest:     A judge who is seeking election or re-election to judicial office may, during the applicable window period, record and post short videos on their personal social media accounts for the purpose of connecting with the public to highlight the judge’s qualifications for judicial office and provide educational content on alternate dispute resolution and mediation. At the end of the window period, the judge must remove the videos from all social media accounts.

Rules:       22 NYCRR 100.0(Q); 100.3(B)(8); 100.4(G); 100.5(A)(2); 100.5(A)(2)(ii)-(iii); 100.5(A)(4)(a); 100.5(A)(4)(d)(i)-(iii); Opinions 21-40; 17-148; 16-05; 15-121; 12-129(A)-(G); 10-138; 04-95.

Opinion:

A full-time judge who is a candidate for election to another judicial position asks if it is ethically permissible to record and post short educational videos on the judge’s personal social media accounts. The purpose of the videos is to connect with the public by highlighting the judge’s qualifications for judicial office and promoting the judge’s skill set in advancing alternate dispute resolution (ADR) techniques and mediation as effective tools to resolve legal disputes.

 A judicial candidate, i.e. a judge or non-judge who is seeking public election to judicial office, may personally participate in their own campaign during the applicable window period (see 22 NYCRR 100.0[Q]; 100.5[A][2]). For example, a judicial candidate may appear in newspaper, television and other media advertisements and distribute pamphlets and other promotional campaign literature (see 22 NYCRR 100.5[A][2][ii]). In doing so, the candidate must “maintain the dignity appropriate to judicial office and act in a manner consistent with the impartiality, integrity and independence of the judiciary” (22 NYCRR 100.5[A][4][a]). Thus, all campaign statements must be entirely truthful and not in any way misleading (see 22 NYCRR 100.5[A][4][d][iii]; Opinion 12-129[A]-[G]). A judicial candidate may not make pledges or promises of conduct in office at odds with impartial performance of judicial duties (see 22 NYCRR 100.5[A][4][d][i]), or make improper promises about controversies, cases, or issues likely to come before the court (see 22 NYCRR 100.5[A][4][d][ii]).

 The rules and our opinions make clear that judicial candidates are permitted to use various forms of media in a judicial campaign (see 22 NYCRR 100.5[A][2][ii]-[iii]), including social media (see e.g. Opinions 21-40 [Twitter]; 15-121 [Facebook]). As we have noted regarding internet-based social networks and internet blogs, “the question is not whether a judge may use” such technologies, “but how [the judge] does so” (Opinion 16-05, citing Opinion 10-138).

 Here, the inquiring full-time judge proposes to use their personal social media accounts during their window period to highlight their qualifications for judicial office by providing educational information for public consideration about mediation and ADR techniques. In our view, this proposed conduct is permissible during the applicable window period as a means of promoting the judge’s judicial campaign. As always, the judge must not comment on any pending or impending cases in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]), nor provide legal advice or promote a particular point of view to influence the public in legal matters (see Opinion 17-148; 22 NYCRR 100.4[G]). Also, the judge may not make statements in the videos which indicate a predisposition to decide legal matters in a certain way (see Opinion 04-95; 22 NYCRR 100.5[A][4][d][i]-[ii]). Finally, the judge must remove the videos from all social media accounts at the end of the judge’s window period.