September 4, 2014
Digest: When a candidate’s fund-raising publication uses a photograph that includes a judge’s image, and the related verbiage does not imply the judge is endorsing or soliciting funds for the candidate, the judge does not have an affirmative obligation to object, but may do so.
Rules: 22 NYCRR 100.2; 100.5(A)(1)(e); Opinions 12-61; 11-35; 07-80; 04-133; 03-92.
The inquiring judge states that a photograph of several judges, including the inquiring judge, has appeared in a non-judicial candidate’s campaign literature.1 The photograph appears in the candidate’s multi-page fund-raising brochure, with a caption stating that the candidate “helped select these judges who reflect the diversity” of a particular locality. The judges are not named or otherwise identified. The judge states that although the photograph was used without his/her consent, it has prompted several individuals to ask the judge if he/she is endorsing the candidate. The judge asks if he/she now has an affirmative obligation to take any formal steps regarding the candidate’s unapproved use of the photograph.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), and must not publicly endorse any candidate for public office, directly or indirectly (see 22 NYCRR 100.5[A][e]).
Under the facts presented, of course, the inquiring judge has not publicly endorsed the candidate, and was not even aware of the candidate’s use of the judge’s photograph. Thus, the question is whether the candidate’s conduct creates such an appearance of impropriety that the judge must take affirmative steps to counteract it. This possibility is not unprecedented, because the Committee has previously advised that a judge has an obligation to object in writing when a not-for-profit organization uses the judge’s name and/or photograph for fund-raising purposes (see Opinions 12-61; 11-35; 07-80; 04-133; 03-92).
In those opinions, however, the judge’s name and/or photo was clearly being used in the solicitation of funds. Here, by contrast, the judge’s name and photograph are not being used on the invitation to a fund-raising event or any other such direct solicitation. Nor does the candidate claim the judges shown in the photograph have endorsed him/her. Instead, the photograph of several unidentified judges accompanies the candidate’s claim that he/she has helped promote diversity in the judiciary, an assertion apparently being proffered as a credential or qualification for the non-judicial office the candidate seeks. Therefore, under the circumstances presented, the judge may, but is not ethically required to, take affirmative steps objecting to the use of the photograph.
1 That is, the candidate is not a judge, and is seeking non-judicial office.