Opinion 22-165

December 15, 2022

Digest:       A full-time judge who participated in writing a screenplay before assuming judicial office (1) 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 but (2) may not participate in a question and answer session following the screening of the film, even in an academic setting.

Rules:        22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 22-99; 18-48; 17-163/18-03/18-21; 16-37; 05-149.

Opinion:

         Before assuming full-time judicial office, the inquirer wrote certain fictional chapters loosely based on their own life, including a prior unsuccessful experience with the judicial selection process. Screenwriters have adapted the judge’s work into a screenplay for a commercially produced fictional film. The judge is not seeking any compensation for the judge’s prior written contributions, but asks, if the film is made, whether the judge may (1) be credited by name as a writer, and (2) participate in a post-screening question and answer session concerning the collaborative writing process, in a strictly academic setting such as a film school.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and may not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). A judge may engage in writing and other extra-judicial activities that do 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 and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]). For example, a judge may not publicly comment on “a pending or impending proceeding in any court within the United States or its territories” (see 22 NYCRR 100.3[B][8]), and a full-time judge must not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D][3]).

1. Writing Credit

         We have advised that a full-time judge who wrote a screenplay based on the judge’s childhood and prior legal career may enter into an option agreement to sell the screenplay (see Opinion 16-37). Indeed, the judge may be listed as a “co-executive producer” where the role was a passive one and was only a vehicle for payment of writer’s fees, co-executive producer compensation and royalties, although the judge “must not permit his/her judicial position to be exploited in promoting the published work” (id.). Here, we similarly conclude that the judge may be credited as a writer, provided the judge’s judicial title is not used in the credits.

2. Participation in Post-Screening Discussions

         For full-time judges, we distinguish between “participation in non-fiction programming, such as news programs, talk shows, documentaries, or other educational or public service programs, and fictional programming, even if ‘inspired’ by real life” (Opinion 17-163/18-03/18-21). As we explained in Opinion 22-99 (citations omitted), for a full-time judge:

participation in fictional [television or film] programs produced by a for-profit entity is prohibited, even if uncompensated. Thus, the judge must not participate in any fictional commercial program by acting, being interviewed on camera, hosting the show, or serving as a paid or unpaid consultant or advisor. The judge may not participate in such commercially produced fictional television programs while retaining the position of a full-time judge.

         Here, since the screenplay is being developed by a commercial entity into a fictional film, we conclude that the judge may not participate in post-screening question and answer sessions, regardless of where the event occurs or how the topics are defined. We note that such screenings are typically associated with marketing and sales, which could give the appearance that the judge is an “active participant” in the business entity that is producing and promoting the film (see Opinions 17-163/18-03/18-21; 05-149).¹

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¹ By contrast, where the film is a documentary, we have said a full-time judge “may engage in post-screening question and answer sessions and press interviews at film festivals planning to show a documentary ... about [the judge’s] volunteer work,” subject to generally applicable limitations (Opinion 18-48).