October 29, 2020
Digest: An appellate division justice who learns that a law firm’s website features screen shots and video of the court’s oral arguments, in which the court’s justices are visible and readily identifiable, must ask the law firm to remove them. The court may, in its discretion, post a notice on its own website advising that images and videos of the court’s justices shown on the court’s website or otherwise may not be used to advance private interests or in furtherance of any commercial purpose. The court and its justices need not monitor lawyer websites but upon learning of any such misuse in the future, a justice should object and request that the offending images be removed.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(3); Opinions 20-80; 18-126; 17-78; 15-19; 12-62/12-69; 12-61; 11-35; 03-92.
An appellate division justice recently learned that a law firm posted on its website, including on its home page, certain screen shots and videos from the court’s public webcasts of its live and archived oral arguments, in which a law firm partner is shown participating in an argument. In these images, the panel hearing the appeal is prominently depicted, while the arguing attorney is depicted in a smaller box at the bottom of the screen. In some instances, the justices’ name plates are legible. The inquiring judge asks if he/she must reach out to the law firm to request that the images not be used on the firm’s website. The justice further advises that the court is considering placing a notice on its website indicating that pictures and videos of the justices may not be used to advance private interests or in furtherance of any commercial purpose. The justice asks whether such a notice would cure any potential future misuses, without the need for the court to actively monitor lawyer websites in the future.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Therefore, a judge must not lend the prestige of judicial office to advance any private interests and must not convey or permit others to convey that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]).
In analogous situations, we have generally advised that a judge who discovers that their name or likeness has been misused should object in writing and request that the improper use cease. In Opinion 12-62/12-69, we concluded that a judge who, after agreeing to lecture at a continuing legal education program, learned that the sponsoring organization was using the judge’s name and title to solicit attorneys to attend the program in a manner that clearly implied that attendance would put the attorneys in a special position to influence the judge, must withdraw from the program and object in writing to the sponsoring organization. Similarly, a judge who agreed to an interview and later discovers that the interview was posted on a private law firm’s website must instruct the firm to remove the post (see Opinion 18-126). And a judge who learns that a not-for-profit entity has used the judge’s name or photograph for fundraising purposes must object to the organization in writing (see Opinions 12-61; 11-35; 03-92).
Here, the law firm’s improper use of images of appellate division justices on its website, presumably in an effort to advertise its attorneys’ prowess and experience in arguing before the court, undertakes to lend the prestige of judicial office to advance the private interests of the firm “in a manner that [is] grossly insensitive to the [justices’] ethical obligations” (Opinion 12-62/12-69). Accordingly, we conclude that, having learned of the misuse, the justice must object in writing to the law firm. In the written objection, the justice should instruct the law firm not to use images from the court’s webcasts in a similar manner in the future (see Opinion 12-61). Beyond this, the inquirer need not take any further action, as the justice “cannot control what the organization chooses to do in response to the [justice’s] letter, and this Committee has no authority to advise or direct the organization with respect to its actions in this matter” (Opinion 11-35 [citation omitted]; see also Opinions 15-19 [full-time judge who asked former law firm in writing to immediately remove the judge’s name from the firm’s signage, letterhead, and other materials need not take any further action]; 17-78 [judge who objected orally and in writing to appearance of the judge’s name in a letter soliciting funds for a charity need not take any further action]).
We believe the court may, if it wishes to do so, post a notice on its own website advising that images and videos of the court’s justices shown on the court’s website or otherwise may not be used to advance private interests or in furtherance of any commercial purpose (see generally 22 NYCRR 100.2[C]; 100.4[D]; Opinion 20-80 [court-attorney referee may set up an email auto-response to provide general legal and ethical information, provided the message is consistent with the Rules Governing Judicial Conduct]).
We emphasize that the court and its justices have no obligation whatsoever to monitor law firm websites to ensure that the court’s publicly available webcasts are not being misused. Should a justice nonetheless learn of such misuse, the justice must object in writing and request that the images be removed, even if the court has chosen, as it may, to place a notice on its website that any such use is unauthorized. We note that those who visit a law firm’s website could misconstrue such images as judicial endorsement of the firm, and could easily be unaware of notices on the court’s website.