January 28, 2021
Digest: A full-time judge may participate, without compensation, as an interviewee and consultant for a commercially- produced documentary concerning a case the judge prosecuted several decades ago, provided the case has completely terminated and no related proceedings are pending or impending.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(b); Opinion 17-163/18-03/18-21.
The inquiring full-time judge, a former prosecutor, was involved in a high-profile prosecution decades ago. The litigation ended in the 1990s and no related or collateral proceedings are reasonably foreseeable at this time. The judge asks if it is permissible to participate in a commercially-produced documentary about the case and certain individuals involved, as an unpaid consultant and interviewee. The judge would receive expense reimbursement if travel is involved, but would not otherwise receive payment.
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]). A judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B]). A judge’s extra-judicial activities must not interfere with judicial office and must not (1) cast reasonable doubt on his/her 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]-). A full-time judge must not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D]).
As we advised in Opinion 17-163/18-03/18-21, a full-time judge may participate, without compensation, in an interview for a commercially-produced documentary “concerning a case he/she prosecuted over a decade ago, provided the case has completely terminated and no related proceedings are pending or impending.” We believe this judge may likewise participate as an unpaid interviewee and consultant for a documentary about the case the judge prosecuted decades ago, subject to the same constraints. In doing so, the judge must abide by generally applicable limitations on speech and conduct. For example, the judge must “be careful that any remarks concerning his/her prior employment as a prosecutor do not cast reasonable doubt on his/her ability to be fair and impartial as a judge” (id.). We expect this may be “easily accomplished” if the judge is careful to distinguish “between his/her past and present roles” (id.).
While a full-time judge may not accept compensation for participating in a commercially-produced documentary, we note that, if travel is involved, the judge may accept expense reimbursement for “the actual cost of travel, food and lodging reasonably incurred by the judge” (22 NYCRR 100.4[H][b]), provided that “the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H]).