Opinion 22-96

June 30, 2022

Digest:         A judicial candidate or their campaign committee may post photographs on social media of the candidate together with sitting judges at a public or professional event, such as a bar association function, provided (a) the photograph was published with the consent of the judges, (b) there is no verbiage that indicates an endorsement, and (c) a caption makes clear that the judges depicted do not endorse the candidate’s judicial campaign.

Rules:          22 NYCRR 100.5(A)(1); 100.5(A)(1)(c), (e); 100.5(A)(2); 100.5(A)(4)(a); Opinions 18-174; 17-79; 12-114; 12-84/12-95(B)-(G); 08-64; 07-89; 05-101.

Opinion:

         The inquiring court attorney is a declared candidate for election to full-time judicial office within the applicable window period. The court attorney recently attended a bar association function which honored the court attorney’s supervisor, a sitting judge. At the event, the court attorney posed for photographs with at least two sitting judges, including the honoree. The court attorney initially posted these photographs on their personal social media page, and now asks if it is ethically permissible to post the photographs on their campaign committee’s social media page as well. If not, the court attorney asks if it is necessary to remove these photographs from their personal social media page.

         A judge or non-judge candidate for elective judicial office may personally participate in their own campaign for judicial office during their window period, subject to certain limitations (see 22 NYCRR 100.5[A][1][c]; 100.5[A][2]). Thus, for example, a judicial candidate must act in a manner consistent with the impartiality, integrity and independence of judicial office (see 22 NYCRR 100.5[A][4][a]) and must not publicly endorse another candidate for public office (see 22 NYCRR 100.5[A][1][e]) or otherwise engage in “any partisan political activity” other than their “own campaign for elective judicial office” (22 NYCRR 100.5[A][1][c]).

         A judicial candidate should be sensitive to the broad ethical limitations on a sitting judge’s political activity (e.g. 22 NYCRR 100.5[A][1]) and thus may not solicit endorsements from sitting judges, even if the candidate is a court employee who works closely with one or more judges. For example, a judicial candidate who received a prestigious court-related award must not use quotations from the award nomination letters in their judicial campaign, if the letter writer is “currently a sitting judge or other person subject to Section 100.5” (Opinion 08-64). We explained that using “quotations by anyone subject to Part 100.5 in campaign materials ... would imply that the person quoted was endorsing the [candidate]’s election” (id.). Similarly, a judicial candidate “may list the name of a sitting judge as a reference for a political party’s screening panel but must not ask a sitting judge to write the panel directly on the candidate’s behalf” (Opinion 12-84/12-95[B]-[G]). Indeed, a judicial candidate must not use “photographs that might convey the impression that the courthouse is being used for political purposes,” in order to avoid “the danger of a public perception of entanglement of the judiciary itself in the political process” (Amended Opinion 05-101).

         Nonetheless, in some circumstances, a judicial candidate may use a photograph in which a sitting judge appears. When a judge’s spouse or first-degree relative is running for election, the judge may appear with that relative in a family photograph to be used in the relative’s election campaign, provided no reference is made to the judge’s judicial title or position (see e.g. Opinions 18-174; 17-79). As we explained in Opinion 12-114 (citations omitted):

At a minimum, a judicial candidate’s decision to use a photograph depicting him/herself with another person in his/her campaign literature essentially invites the viewer to infer that the candidate is associated with the persons depicted in the photograph. In many instances, this is ethically permissible. For example, the Committee has advised that, subject to certain limitations, a judicial candidate may use a photograph taken with other candidates for elective office or taken with one or more family members. In both of those situations, use of a joint photograph is not misleading because there is, in fact, a meaningful connection between the candidate and others in the photograph, such as a family relationship or as members of a slate of candidates (internal citation omitted).

Likewise, in Opinion 07-89, we advised that a judicial candidate may use a photograph taken with the sitting judge who administered the candidate’s oath of office, where the photograph was taken at a public swearing-in ceremony and was already published as a news item in the local newspaper.

            Here, too, we believe the inquiring judicial candidate may post photographs on social media of the candidate together with one or more sitting judges at a bar association function, as the photographs were taken at a public or professional event, provided (a) the photograph was published with the consent of the judges depicted (cf. Opinion 12-114 [suggesting a joint photograph would be “misleading” if there is no “meaningful connection between the candidate and others in the photograph”]), (b) there is no verbiage that indicates an endorsement, and (c) a caption makes clear that the judges depicted do not endorse the candidate’s judicial campaign (cf. Opinion 08-64 [candidate who quotes language from an awards nomination letter must provide “sufficient information or context ... to avoid misleading the public”).¹

         Provided these conditions are met, the photographs may be posted on the campaign committee’s social media page.

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¹ On the facts provided, a caption such as “Candidate So-and-So at the 2022 XYZ Bar Association Dinner (personal photo, not an endorsement)” would suffice.