Opinion 23-121
October 26, 2023
Digest: A judge may not permit a fraternal organization to use the judge’s likeness, image or affiliation for any fund-raising purposes, and therefore the judge should instruct the organization not to use the judge’s video interview at an event where one purpose of the event is for fund-raising.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(i)-(ii), (iv); Opinions 21-31; 20-108; 18-61; 16-152; 14-93.
Opinion:
The inquiring judge is on the board of a not-for-profit fraternal organization. Some time ago, the judge participated in a non-fund-raising video intended “to showcase the long-term benefits and meaning” that the organization has played in the development of young adults. Snippets of an interview about the judge’s experiences with the organization “and the part it played in developing my career” were included in “a several minute video with other board members, past international presidents, and high-level staff.” The video references the judge’s current role in the organization as well as the judge’s judicial office. The judge was assured that the video was not intended for fund-raising and also personally reviewed the video to confirm that it does not contain any solicitations. However, the judge has now learned that the video is played at alumni events and award-recipient dinners with the hope that “non-engaged alumni” will increase their involvement and that non-members “may become donors.” The judge is “neither referenced nor mentioned in any advertising of these events.” In light of this use, the judge asks if it is necessary to instruct the organization “to either cease using [the video] or delete [the judge’s] portions of it.”
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 must not lend the prestige of judicial office to advance any “private interests” (22 NYCRR 100.2[C]) and must not convey or permit others to convey the impression that they “are in a special position to influence the judge” (id.). A judge may not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][i]) and may not be “a speaker or the guest of honor” at a not-for-profit fraternal organization’s fund-raising 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]).
In the relatively narrow context of an educational institution or academic program from which the judge graduated, we have said a judge may appear in a video for “general promotion of the program and/or recruitment of students, but not [for] fund-raising” (Opinion 18-61). Indeed, we permitted such a video to be played at the institution’s fund-raising event, provided that “no reference would be made to the judge or the video in advertising the event or in soliciting attendance or contributions” (id.; see also Opinion 14-93).
Outside that narrow context, our general approach is set forth in Opinion 21-31 (citations and paragraph break omitted):
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. 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. 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.”
Thus, in Opinion 16-152, we said a judge may not appear in a videotaped interview on behalf of a re-entry agency that would be shown at the agency’s fund-raising event. Similarly, a judge who underwent surgery at a not-for-profit hospital may not engage in a web program concerning the hospital’s performance, notwithstanding the hospital’s “stated purpose of ‘patient education’” in sharing the judge’s personal experience as a patient online (Opinion 20-108). We noted that while “there is no indication” that the recording would be used for fund-raising, “it is clear it will be used for promotional purposes” (id.). Likewise, we said a judge must 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” (Opinion 21-31).
Here, including the judge in the organization’s video is a clear attempt to promote the fraternity/sorority as a critical factor in the judge’s judicial career. Because the judge may not allow the organization to use the judge’s likeness, image or previous organizational affiliation for any fund-raising purposes, the judge should instruct the not-for-profit fraternal organization not to use the judge’s video interview at an event where one purpose of the event is for fund-raising.