Opinion 24-166

October 30, 2024

Digest:  Assuming permission is granted under 22 NYCRR 29.1(a), a judge may hire a professional photographer at the judge’s own expense to take the judge’s picture wearing a judicial robe in the courtroom at the bench during open, non-court hours for the judge’s personal use to display in chambers or in the judge’s home.

Rules:   22 NYCRR 29.1(a); 100.2; 100.2(A); 100.2(C); Opinions 23-49; 00-102; 95-141; 90-78; 89-123.

Opinion:

          A judge asks if it is ethically permissible to hire a professional photographer at his/her own expense to take the judge’s picture in the courtroom at the bench wearing a judicial robe.  The judge intends to use the photograph for personal use, to display in chambers or at the judge’s home.  The judge plans to obtain permission from the appropriate administrative authority pursuant to 22 NYCRR 29.1(a) and would thereafter pose for the photograph at a time when the courthouse is open and court is not in session.

          A judge must always avoid even the appearance of impropriety and promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]).  A judge may not “lend the prestige of judicial office to advance the private interests of the judge or others” (22 NYCRR 100.2[C]).  Taking photographs in a courtroom or any other part of a courthouse “at any time or on any occasion” is prohibited without the permission of the Chief Administrator of the Courts or an appropriate designee (22 NYCRR 29.1[a]).

          We have advised that a judge’s photograph may be included in a photographic exhibit displayed in local public libraries (see Opinion 95-141) and a judge may pose for a portrait that will be displayed in the courthouse (cf. Opinion 90-78).  Although a judge may not permit a photographer to use the judge’s portrait on a business card, as this would lend judicial prestige to the photographer’s private interests (see Opinion 89-123), no improper purposes are evident in the present inquiry. 

          Judicial robes are “a signification of judicial status” (Opinion 00-102) and thus the permissibility of wearing them during extra-judicial activities may involve a fact-specific analysis (see Opinion 23-49).  We advised that a judge may wear judicial robes during an appearance in a documentary about notable Italian-Americans, which involved no political activity or fund-raising (see Opinion 00-102).  We also said a judge may wear a judicial robe when giving a keynote address at a public high school graduation, which again involved no fund-raising and no risk of an appearance of lending judicial prestige to any private interests (see Opinion 23-49).   

          Here, we conclude it is ethically permissible for a judge to commission a photograph for purely personal use in chambers or in the judge’s home.  Because the purpose of such a portrait is to display the judge’s image as one would a photograph of a spouse or child in military or other official uniform, the judge may wear judicial robes in the photograph.  Assuming the judge has any necessary administrative approvals, the judge may also be photographed sitting at the bench in the courtroom, which in the present non-political context of private display at home or in chambers is simply a further signification of judicial status.