Opinion 23-78
June 15, 2023
Digest: A judicial association may not consent to have its name listed as a client on a consultant’s website.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); Opinions 15-103; 14-85; 12-26; 06-50; 97-133.
Opinion:
The inquiring judge is an officer of a judicial association that works with a paid consultant on public and government issues. The consultant has asked for permission to include the association as a client on the consultant’s updated website. The judge asks if the association may agree to be listed on the website without any testimonials or quotes.
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’s extra-judicial activities must be compatible with judicial office, and must 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 (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]).
A judicial association, as an organization of judges, is generally held to the same standards as an individual judge (see e.g. Opinion 06-50).
When considering whether a judge’s proposed conduct would lend the prestige of judicial office to advance the private interests of others, a key question is whether the conduct involves “the commercial and promotional aspects of marketing another’s work” (Opinions 12-26; 97-133). Thus, we said a judge may not write a review of the professional services of their divorce attorney in an online rating service that displays reviews to the public, even if the judge’s review would be anonymous with no reference to their judicial status (see Opinion 15-103). We reasoned that such conduct involved “the commercial and promotional aspects of the marketing of another’s work” and therefore would improperly lend the prestige of the judicial office to advance the private interests of others (id.).
Likewise, we advised that a judge may not provide “a written testimonial or other statements for the judge’s former campaign manager to use in advertising or promoting the campaign manager’s promotional services” (Opinion 14-85). In doing so, we recognized that the judge may nonetheless provide a reference in appropriate circumstances. Specifically, a judge may authorize their former campaign manager “to provide the judge’s name as a reference in the course of discussions with specific prospective customers, although not in written advertisements or other promotional materials” (id.).[1]
Accordingly, we conclude that the judicial association may not permit its consultant to publicly list the association as a client on the consultant’s website, even without any testimonials or quotes, as such a listing would improperly lend the prestige of judicial office to advance the commercial and private interests of the consultant.
[1] In response to an inquiry from such prospective customer, the judge “may then state facts concerning his/her own personal experience with the campaign manager, including the judge’s personal knowledge of the campaign manager’s abilities and the judge’s level of satisfaction with the professional services rendered, but should not make a recommendation about hiring the campaign manager” (Opinion 14-85 [citations omitted]).