Opinion 23-129

December 14, 2023

Digest:  Because generating and maintaining an extensive library of educational videos on conflict resolution on a judge’s personal social media account(s) will readily be perceived as a campaign of self-promotion, it is only ethically permissible during the judge’s window period. 

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); Opinions 23-64; 22-155; 20-58; 17-54; 14-49; 10-172; 09-59/09-86; 08-176; 07-05.

Opinion:

          In Opinion 22-155, we advised that, during a judge’s applicable window period for election or re-election to judicial office, the judge may “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.”  However, we also said the videos must be removed once the window period closes.  After reviewing that opinion, the inquiring judge maintained an active social media presence during his/her window period and posted numerous short educational videos about conflict resolution techniques.  The videos feature the judge and allude to the judge’s judicial status, although they do not specifically reference the judge’s election campaign or candidacy.  They appear to have prompted public engagement and media attention as “expert conflict resolution advice.”  The judge has responded to questions on the videos, in the hope of assisting community members in resolving their issues “before reaching the courtroom.”  The judge now asks if it is permissible to keep this extensive library of videos posted on the judge’s personal social media accounts outside of his/her window period. 

          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]).  While a judge may engage in extrajudicial activities such as teaching and writing (see 22 NYCRR 100.4[B]), such activities must not be incompatible with judicial office nor (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). 

          Judges must act with considerable self-restraint in order to “help maintain public confidence in the judge’s ability to ‘perform judicial functions in an appropriate manner consistent with [his/her] legal and ethical obligations’” (Opinion 17-54, quoting Opinion 14-49).  The Rules Governing Judicial Conduct permit a judge to engage in a range of activities promoting the judge’s campaign for election or re-election, but only during a specified window period for a known judicial vacancy (see generally 22 NYCRR 100.5).  Thus, we said a judge may not place “billboard messages extending greetings to the public,” as such billboards would “effectively constitute ‘media advertisements supporting (the judge’s) candidacy’ under the Rules, and are thus impermissible outside the judge’s Window Period” (Opinion 07-05).

          Judges must exercise caution in using social media (see Opinion 08-176).  Indeed, we have urged judges to “employ an appropriate level of prudence, discretion and decorum in how they make use of this technology, above and beyond what is specifically described” in Opinion 08-176, as it is “not difficult” to find “news reports regarding negative consequences and notoriety for social network users who used social networks haphazardly” (id.).  This guidance remains true today, as we seek to prevent ethical dilemmas, rather than to invite them.

          In Opinion 20-58, we recognized that “a judge’s personal social media website is likely to be seen as inviting or encouraging interaction with the judge.”  While this is “unlikely to be problematic” when posting about “hobbies, social events or milestones with friends or family” and other such casual, non-political topics (id.), there are increasing perils when addressing topics more closely related to judicial office.  Clearly, inviting ongoing social media interactions with the public about how to resolve the various disputes and conflicts they are facing is much riskier.  Answering on-line questions from unidentified individuals in this context could place the judge in the position of providing advice to a future litigant (cf. Opinion 23-64 [full-time judge may not participate in a bar association’s phone bank referral event where members of the public call in with legal questions]). 

          As we have also noted, “the more frequently and prominently a judge references his/her judicial position on his/her personal social media website, the greater the risk he/she will be seen as using that judicial position to advance his/her private interests” (Opinion 20-58).  Thus, we advised that a judge may not maintain a “personal judicial website,” as it may create an appearance that the judge is “using the prestige of judicial office to advance his/her own private interests, which is prohibited by the Rules” (Opinion 10-172).  Likewise, while a part-time lawyer judge may briefly mention his/her judicial position in an online law firm biography, the judge “should not describe his/her judicial duties or significant cases over which he/she has presided” (Opinion 09-59/09-86).  Nor may a part-time lawyer judge publish his/her judicial decisions on his/her personal social media website, where doing so may (inter alia) indirectly promote his/her law practice (see Opinion 20-58).

          While the inquiring judge describes the videos as informational and educational, they are nonetheless cloaked in the trappings of judicial office and will readily be perceived as a campaign of self-promotion.  Indeed, a careful review of all circumstances relevant to the inquiry reveals no new factors that would warrant modifying our advice in Opinion 22-155 that such videos are only permissible “during the applicable window period as a means of promoting the judge’s judicial campaign.”  Accordingly, the judge must remove the videos from all social media accounts at the conclusion of the judge’s window period.