September 13, 2012
Digest: A judicial candidate may not use a photograph taken at a social event with an elected local public official who is not part of the candidate’s slate and who has not endorsed the candidate, unless the official consents to use of the photograph in the judicial candidate’s campaign.
Rules: 22 NYCRR 100.5(A)(1); 100.5(A)(1)(e); 100.5(A)(2)(ii), (iii); 100.5(A)(4)(a); 100.5(A)(4)(d)(iii); 100.6(A); 22 NYCRR 1200, Rule 8.2(b); Opinions 07-137; 07-136; 07-135; 07-89; 03-64; 96-07 (Vol. XIV); Matter of Myers, 67 NY2d 550 (1986); 2007 Ann Rep of NY Commn on Jud Conduct, at 115, 117.
A non-judge candidate for elective judicial office states that he/she has posted a photograph on his/her campaign website of the candidate standing with two other individuals at a social function or professional networking event that all three individuals attended. Although the photograph is not captioned, the inquiring candidate explains that one of the individuals shown in the photograph is a local elected non-judicial official who is a member of a different political party from the candidate. The official’s political party has asked the inquiring judicial candidate to remove the photograph from his/her campaign website because, in the party’s view, use of the image creates the erroneous impression that the public official is endorsing the judicial candidate. The candidate asks whether he/she must remove the photograph from his/her website.
A judge or non-judge candidate for elective judicial office is subject to applicable provisions of the Rules Governing Judicial Conduct throughout the course of his/her campaign (see 22 NYCRR 100.5[A]; 100.6[A]; cf. 22 NYCRR 1200, Rule 8.2[b] [Judicial Rules applicable to lawyers who are candidates for judicial office]). A judicial candidate must not knowingly make any false statement or misrepresent the identity, qualifications, current position or other fact concerning the candidate or an opponent (see 22 NYCRR 100.5[A][d][iii]) and must act in a manner consistent with the impartiality, integrity and independence of the judiciary (see 22 NYCRR 100.5[A][a]); there is thus no place for distortions in a judicial campaign (see Opinion 07-135).1 Subject to these and other limitations, a judicial candidate may appear in media advertisements supporting his/her candidacy (see 22 NYCRR 100.5[A][ii]); distribute promotional campaign literature supporting his/her candidacy (see id.); and appear in media advertisements with the candidates who make up the slate of which the candidate is a part (see 22 NYCRR 100.5[A][iii]).
At a minimum, a judicial candidate’s decision to use a photograph depicting him/herself with another person in his/her campaign literature essentially invites the viewer to infer that the candidate is associated with the persons depicted in the photograph. In many instances, this is ethically permissible. For example, the Committee has advised that, subject to certain limitations, a judicial candidate may use a photograph taken with other candidates for elective office (see Opinion 03-64; 22 NYCRR 100.5[A][iii]) or taken with one or more family members (see Opinions 07-136; 96-07 [Vol. XIV]). In both of those situations, use of a joint photograph is not misleading because there is, in fact, a meaningful connection between the candidate and others in the photograph, such as a family relationship or as members of a slate of candidates.2
In the Committee’s view, a judicial candidate’s use of a photograph depicting him/herself socializing with a local elected official can only reasonably imply that there likely is a connection between the candidate and the official. The facts set forth in the inquiry reveal no connection beyond their mere presence at the same social function or professional networking event. Where, as here, they are not members of the same political slate, use of the photograph further conveys the impression that the public official has “reached across the aisle” to endorse the judicial candidate – an impression that is false under the facts presented. Finally, the Committee notes that the public will also likely assume that the local public official shown in the photograph has explicitly or implicitly authorized the candidate’s use of the photograph. Again, the opposite is true; the official has requested, through his/her political party, that the photograph be removed.
Accordingly, under the circumstances presented, the inquiring candidate must remove the photograph from his/her campaign website as requested to avoid misleading the public (see generally 22 NYCRR 100.5[A][d][iii]; Opinion 07-135).
1 “Distortions and misrepresentations have no place in campaigns for judicial office. Judicial candidates for judicial office are expected to be, and must be, above such tactics. It is especially important for judicial candidates to be truthful because judges are called upon to administer oaths and are ‘sworn to uphold the law and seek the truth’” (see 2007 Ann Rep of NY Commn on Jud Conduct, at 115, 117, quoting Matter of Myers, 67 NY2d 550 ).
2 The Committee has also previously advised that a judicial candidate may, subject to limitations, use published photographs of him/herself performing duties connected with his/her office, such as hosting visitors to the court (see Opinion 07-137) or being sworn in as a judge (see Opinion 07-89). In that case, the Committee anticipates that use of such previously published photographs will not be misleading, as the other participants in the court visit or the swearing-in ceremony are appearing in specific roles appropriate to the occasion.