June 30, 2022
Digest: A full-time judge may meet with a commercial television producer and their creative team to discuss a possible television show involving the criminal justice system, even if the meeting could result in an employment offer or business opportunity which the judge cannot commence without resigning from judicial office.
Rules: 22 NYCRR 29.1; 100.2; 100.2(A); 100.2(C); 100.3(B)(6); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(D)(3); Opinions 21-156; 20-176; 17-163/18-03/18-21; 16-37; 13-36; 11-18/11-42; 05-35/10-78; 2001 Ann Report of NY Commn on Jud Conduct at 245.
A full-time judge asks if it is permissible to participate in "an informal meeting" with a commercial television producer and their creative team to explore "any opportunities" to do a television show together that "will involve the criminal justice system." The judge does not know whether the discussions might result in a news-type show or documentary, a fictionalized program, or a program about the judge's experiences on the bench, but the judge indicates that the meeting could possibly lead to compensated employment.
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 avoid impermissible ex parte communications (see 22 NYCRR 100.3[B]) and 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 their capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A]-). Moreover, a judge must not lend the prestige of judicial office to advance any private interests, or permit anyone to convey the impression that they are in a special position to influence the judge (see 22 NYCRR 100.2[C]). Moreover, a full-time judge must not serve as an "active participant of any business entity," unless an exception applies (22 NYCRR 100.4[D]).
We have said the Rules Governing Judicial Conduct do not preclude a full-time judge from seeking post-judicial employment with "law firms, governmental agencies or educational institutions" (Opinion 05-35/10-78), as a school superintendent or school district administrator (see Opinion 11-18/11-42), as a private arbitrator (id.), as an alternative dispute resolution provider (see Opinion 20-176), or with a not-for-profit organization that provides training and support services to prosecutors (see Opinion 13-36). This remains true, even though the judge must resign or retire from judicial office before commencing the new employment (see Opinion 11-18/11-42). We see no distinction here, where this informal meeting could potentially lead to a compensated position involving a television show concerning the criminal justice system. Thus, the judge may attend the meeting.
In conducting the meeting, the judge should be mindful of all applicable limitations on judicial speech and conduct. For example, the judge must not comment on any pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B]). Additionally, the judge must refrain from using official stationery or court resources in corresponding with the producer (see Opinion 20-176). The judge may, however, mention the judge's current position and experience, and/or provide a resume or other relevant materials concerning the judge's qualifications (see id.).
Additional Comment: Some Principles from Prior Opinions
Finally, while we cannot address the range of possible outcomes from this proposed meeting, we provide a brief overview of some general principles the judge might keep in mind.
We start from the premise that a full-time judge must not "serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity" (22 NYCRR 100.4[D]). Because a full-time judge may not participate in any commercially produced television program for compensation (see 2001 Ann Report of NY Commn on Jud Conduct at 245 [judge disciplined for participating in movie production and receiving compensation]; Opinion 17-163/18-03/18-21), the judge should expect that they will need to resign from full-time judicial office in order to commence employment and receive compensation (see generally Opinion 21-156).1
For a sitting full-time judge who wishes to participate in commercial television programs without resigning from judicial office, we have drawn a clear distinction 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).
In particular, we said that participation in fictional programs produced by a for-profit entity is prohibited, even if uncompensated (see id.). 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 (id. [citations omitted]). The judge may not participate in such commercially produced fictional television programs while retaining the position of a full-time judge.
However, a full-time judge may participate without compensation in a traditional news program, talk show, or documentary even if it will air on a commercial television or radio station (see Opinion 17-163/18-03/18-21). As we explained:
News programs, like documentaries, are essentially packaged and sold; their owners and producers promote them and use them to make money. Nonetheless, we have "recognized that the community benefits from having judges take a part in community affairs whenever possible," and thus we ... believe that judges should, to the extent permitted by generally applicable limitations on judicial speech and conduct, be able to participate in news programs (id. [citations omitted]).
In order to participate in these types of non-fictional programs, however, the judge must not create an appearance that the judge is an "active participant" in the business entity that is producing and promoting the program (id.). Thus, the judge (1) cannot be compensated for their participation; and (2) must not personally promote the program to the public at large (id.). As always, the judge should be mindful of the normal limitations on judicial speech, including the public comment rule (see 22 NYCRR 100.3[B]), and maintaining the dignity of judicial office (see 22 NYCRR 100.4[A]). The judge should also be aware that any photography or videotaping inside the courthouse is subject to administrative approvals (see 22 NYCRR 29.1), and the judge "must not allow the filming process to interfere with the proper conduct of proceedings" (Opinion 17-163/18-03/18-21 [citations omitted]).
1 We do not here address the situation where a judge is the author of an existing screenplay or other intellectual property that a television producer might wish to acquire (see Opinion 16-37), as these facts are not present in the inquiry.