October 28, 2004
Digest: Under the circumstances presented and subject to certain limitations, a judge may be interviewed by a friend who wishes to write an article about the judge for submission to a commercial magazine for publication in which the article will primarily focus on the judge’s family, civic and extracurricular responsibilities.
Rules: 22 NYCRR 100.2(A); 100.2(C); 100.4(A); 100.3(B)(8); 100.3(E).
A judge asks whether it is ethically permissible for the judge to be interviewed by a friend who wishes to write an article about the judge for submission to a commercial magazine for publication. The magazine specializes in printing inspirational articles aimed at a market comprising women over forty years of age. It is intended that the article will primarily explore the judge’s family, civic, and extracurricular responsibilities. The writer is interested in addressing only one aspect of the judge’s judicial duties, i.e. the performance of marriage ceremonies. The judge will not, however, comment on same-sex marriage or domestic partnerships. Nor will the judge be compensated for the interview or receive any remuneration if the article is published. The judge indicates that interviews will not be held in the courthouse and will not interfere with the judge’s regular judicial duties. The judge recognizes the need to avoid commenting on any pending or impending cases, or to in any way indicate a predisposition to decide any particular case or type of case in a particular way.
A judge may engage in extra-judicial activities so long as they 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.” 22 NYCRR 100.4(A). In the Committee’s view, the inquiring judge would not violate this rule either by granting the interview or by allowing publication of the resulting article.
The judge indicates that the primary focus of the article is the extra-judicial aspects of the judge’s life. To the extent that the interview and article will touch on the judge’s judicial duties, i.e. the performance of marriage ceremonies, the judge indicates an awareness of the rules prohibiting comments on pending or impending cases[22 NYCRR 100.3(B)(8)]and requiring judges to remain impartial with respect to cases that come before them [22 NYCRR 100.2(A); 100.3(E)]. And, while presumably the author will be compensated should the article be accepted for publication in a commercial magazine, there is no appearance that the judge is lending the prestige of judicial office to further the author’s private interests [22 NYCRR 100.2(C)] as the article will focus on the non-judicial aspects of the judge’s life. Moreover, as stated above, the publication specializes in inspirational articles directed to women over the age of 40. The fact that the person being featured in this instance is a woman (presumably over the age of 40) who is able to engage in such activities and meet these extra-professional responsibilities is undoubtedly of greater significance than the fact that the interviewee happens to be a judge. In this circumstance, it is unlikely that the judge’s judicial position will make it more or less likely that the article will be accepted for publication or that the author’s compensation will be enhanced by the judge’s position. For these reasons, it is the Committee’s view that the judge may grant the interview and consent to publication of the article.