Opinion 23-214
February 1, 2024
Digest: A full-time judge who has co-authored a screenplay on a topic unrelated to the law may not use the judge’s judicial title to solicit agents and movie producers for the screenplay, and should likewise instruct the judge’s co-authors not to use the judge’s judicial title in promoting the screenplay.
Rules: 22 NYCRR 100.2; 100.2(A), (C); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(1)(a); 100.4(D)(3); 100.4(H)(1); Opinions 22-165; 19-101; 16-37; 16-06; 15-162; 09-192/09-231; 06-105; 99-145.
Opinion:
The inquiring full-time judge has co-authored a screenplay with two non-judges on a topic unrelated to the law or legal profession. The inquiring judge is seeking an agent to present the screenplay to movie producers and asks if it is ethically permissible to highlight the judge’s judicial status to potential agents. For example, the judge would say at the start of the email, “I am a [judicial title], and I understand from the IMDb that you are a talent agent.”[1] The judge has been told by several people that “inclusion of such information will increase my chances of success.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extra-judicial activities, including avocational activities such as writing, must be compatible with judicial office and must not (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]; 100.4[B]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) or engage in financial and business dealings that “may reasonably be perceived to exploit the judge’s judicial position” (22 NYCRR 100.4[D][1][a]). A full-time judge may not serve as an “active participant of any business entity” (see 22 NYCRR 100.4[D][3]) but may accept compensation for permissible extra-judicial activities as permitted by the Rules (see 22 NYCRR 100.4[H][1]).
We have advised that a full-time judge “may engage in extra-judicial activities … involving the expression of creative talents” and accept reasonable compensation for them (Opinion 09-192/09-231). As described in Opinion 19-101 (citations and footnote omitted):
A full-time judge may write a book and profit from its publication, notwithstanding the involvement of a commercial publisher. Although a judge may not permit his/her judicial position to be “exploited” in promoting his/her book, the judge need not conceal his/her identity as a judge. Indeed, a judge may permit the use of his/her name, judicial title and photograph on the book’s back cover. Moreover, a judge may generally publicize his/her book and participate in book signing and other promotional events a publisher organizes…
We have also said a judge may write and publish books unrelated to the law (see e.g. Opinions 15-162; 06-105; 99-145; see also Opinion 16-06 [noting restrictions in specifically targeting attorneys, where the text is unrelated to the law]). In addressing a judge’s involvement in screenplays, we advised that a full-time judge who wrote a screenplay about the judge’s childhood and prior career in a private law practice may enter an option/purchase agreement for the screenplay (see Opinion 16-37). However, we cautioned that the judge “must not permit his/her judicial position to be exploited in promoting the published work” (id.). Likewise, in Opinion 22-165, we advised that a full-time judge, who participated in writing a screenplay before assuming judicial office, “may be credited by name as a writer in the ensuing fictional film, notwithstanding that the judge’s contributions were based on the judge’s prior unsuccessful efforts to seek judicial office and other experiences.” However, we advised the credits should not include the judge’s judicial title (id.).
Here, we reach a similar conclusion. The inquiring judge may not use the judge’s judicial title to solicit agents and movie producers for the screenplay and should also instruct his/her co-authors not to use the judge’s judicial title in promoting the screenplay.
[1] The IMDb is an online database of information about films, television series, and streaming online content (see https://en.wikipedia.org/wiki/IMDb).