Opinion 23-116

October 26, 2023

Digest:    A judicial association may enter into a licensing agreement with a vendor to create and sell themed products to association members, provided such agreement is non-transferable, and the association prohibits the vendor from using the association’s name in any advertising or listing the association as a customer/client.

Rules:      22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 23-78; 20-102; 19-60; 17-11; 15-162; 15-141; 09-174; 00-01; 99-145; 96-143/97-43/97-58/97-66/97-96.

Opinion:

          A judicial association would like to offer association-themed products to its members.  As the association does not have the resources to create or sell the products directly, the association proposes to license its logo to a third-party business for this purpose.  A non-transferable license would be provided to a specific vendor selected by the association’s board of directors, and thereafter the association would provide its members with a link to order directly from the vendor.  The association would make no profit from the licensing arrangement or merchandise sales but would retain the right to approve or disapprove any use of the logo on new product offerings.  The inquiring judge, who is an officer of the association, asks if the proposed arrangement is ethically permissible.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge may not lend the prestige of judicial office to advance any private interest (see 22 NYCRR 100.2[C]).  A judicial association, as an organization of judges, is generally held to the same standards as an individual judge (see e.g. Opinions 23-78; 09-174).

          Initially, we note that with respect to endorsement of products and services offered by a for-profit entity, the anti-prestige rule is “particularly strict” to avoid any appearance that a judge is lending the prestige of judicial office to advance private interests (Opinion 09-174; 22 NYCRR 100.2[C]).  However, we do not believe the rule was intended to prevent judges and, by extension, their professional associations from creating a mechanism to allow members to purchase association-themed items for themselves. 

          While the present issue is one of first impression for us, we draw guiding principles from our prior opinions concerning intellectual property.  We have advised that judges may obtain and license their own patents and even help manage a family member’s intellectual property rights (see Opinions 20-102 [judge may obtain a patent and license it to another]; 19-60 [judge may be an officer in a relative’s closely held company which “is engaged solely in the business of holding and managing certain intellectual property assets” created by another relative]; 00-01 [judge may sell a patent owned by the judge]).

          Likewise, we have advised that full-time judges whose intellectual property takes written form may enter into publishing contracts and accept royalties, notwithstanding the participation of a commercial publisher (see e.g. Opinions 17-11 [musical compositions]; 15-162 [children’s book]; 15-141 [treatise on a specialized area of law]; 99-145 [works of fiction]; 96-143/97-43/97-58/97-66/97-96 [legal commentaries]). 

Consistent with these opinions, we conclude that a judicial association may enter into a licensing agreement with a particular vendor to sell themed products to its membership.  To ensure adherence to our ethics rules, we remind the inquirer that any licensing agreement must be non-transferable, and the judicial association must take steps to prohibit the vendor from using the association’s name in any advertising or listing the association as a customer/client (see Opinion 23-78).