Opinion 14-93
June 12, 2014
Digest: A judge (1) may be honored as a distinguished alumnus/alumna at a college’s fund-raising event, provided the judge’s participation is not advertised prior to the event and the judge’s name is not listed in advance on invitations or announcements; (2) may permit the college to include information about the judge in a journal that will be distributed to guests during (but not before) the event; (3) may participate in the college’s recruitment efforts by participating in a video recording in which the judge will discuss his/her memories of the college and its impact on his/her career and provide a message to this year’s graduates; (4) may permit the college to play the video recording during the gala fund-raising event and thereafter post it on the college’s website, provided the video is used for general promotion of the college and/or recruitment of students, but not fund-raising.
Rules: 22 NYCRR 29.1; 100.2; 100.2(A); 100.4(C)(3)(b)(i)-(ii), (iv); Opinion 14-45; 13-87; 02-38; 02-21; 00-102 (Vol. XIX); 00-31 (Vol. XIX); 99-99 (Vol. XVIII); 97-11 (Vol. XV); 96-75 (Vol. XIV); 91-19 (Vol. VII); 88-79 (Vol. II).
Opinion:
The inquiring judge asks if he/she may accept his/her college alma mater’s invitation to be an honored guest at a gala fund-raiser for a significant anniversary. The college advised the judge it plans to honor several “distinguished alumni” from different time periods of the college’s history, and that the invitation and website will not reveal the judge’s name or title in advance of the event. The judge further asks whether he/she may participate in a short video recording about the judge’s experience attending the college, which will be aired during the gala. In the video, the judge would discuss his/her memories of the college, the college’s impact on the judge and his/her career, and provide a message for this year’s graduates. The judge states the college would also like to post the video on its alumni website after the gala. The college told the judge, “[i]t would be our intention to have this video seen by other alumni, current students and perhaps potential donors in an effort to showcase our successful alumni and raise the profile of [the college] to internal and external constituents. Our goal would be to highlight our outstanding institution by demonstrating the success and achievement of our alumni.”
The judge further asks whether he/she may appear in the video wearing a judicial robe and permit the college to record the video segment in his/her chambers. Finally, the judge asks whether he/she may permit the college to include both a brief biography of the judge as one of the distinguished alumni, as well as a short article about the judge, in a journal to be distributed to guests at the gala fund-raising event.
A judge must avoid even the appearance of impropriety in all the judge’s activities (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 may not personally solicit funds (see 22 NYCRR 100.4[C][3][b][i]) or permit the use of the prestige of judicial office for fund-raising (see 22 NYCRR 100.4[C][3][b][iv]). A judge may attend fund-raising events for not-for-profit educational organizations but may not be a speaker or guest of honor at such events unless an exception applies (see 22 NYCRR 100.4[C][3][b][ii]). Of particular relevance here is one exception permitting a judge to accept “an unadvertised award ancillary to” such events (id.).1
The Committee has previously advised that a sitting judge may not accept an advertised award as outstanding alumnus/alumna of the year from the judge’s college alumni association’s local chapter at its annual scholarship fund-raising dinner (see Opinion 99-99 [Vol. XVIII]). However, a judge may accept an unadvertised award from a college, which will be presented at the college’s fund-raising event, provided the judge’s name is not listed on invitations to the fund-raising event or other promotional materials and is not otherwise announced prior to the event (see Opinion 14-45; 22 NYCRR 100.4[C][3][b][ii]). The Committee has extended this general principle to a judge who will not receive “an award” at a not-for-profit organization’s fund-raising event, but will simply be “honored” at the event (see Opinion 13-87 [“The inquiring judge may agree to be honored at the organization’s fund-raising event, provided his/her participation is not advertised prior to the event. Also, the judge’s name must not be listed on invitations or announcements of the event.”] [citations omitted]). Thus, the judge may also be honored as a distinguished alumnus/alumna at the college’s fund-raising gala, provided the judge’s participation is not advertised before the event and the judge’s name is not listed in advance on invitations or announcements (see Opinions 14-45; 13-87).
The Committee has also advised that, when accepting a previously unannounced award at a college’s fund-raising event, the judge may be identified during and after the event as an award recipient, including on any brochures or programs distributed at the event, and may thereafter be listed as an award recipient on the college’s website (see Opinion 14-45). This principle, too, applies in the present context, and therefore the judge may permit the college to include information about the judge as one of the “distinguished alumni” being honored at the event, in a journal given to guests during (but not before) the gala fund-raising event.
As for the proposed video, the Committee has previously advised a judge may assist in “[t]he recruitment of outstanding students for an academic institution” (Opinion 91-19 [Vol. VII]). Thus, if no fund-raising is involved, the Committee has advised that a judge may write a letter to prospective college students describing “the judge’s feelings about the college and details personal information about the judge’s legal career, to attract students to [the] college” (Opinion 91-19 [Vol. VII]); may permit his/her alma mater to include the judge’s resume and photograph in a brochure intended “to advertise to the public and prospective employers of the university’s students and graduates the high caliber and high career achievements of the university’s alumni and alumnae” (Opinion 88-79 [Vol. II]); may welcome prospective students and their families at the Open House of the college from which the judge graduated and at which the judge serves as adjunct faculty (see Opinion 02-38); may permit his/her law school to use the judge’s photograph taken in the courtroom and featuring the judge as a “high achieving alumna” on a postcard to encourage lawyers to rate the law school favorably in a magazine’s annual law school ranking survey (Opinion 96-75 [Vol. XIV]); may, “[a]s an alumnus of [a] university, ... sign letters to prospective students encouraging their acceptance of admission” (Opinion 97-11 [Vol. XV]); and may allow his/her name, photograph and biography to be used by his/her alma mater “in an advertising campaign to encourage the recruitment of students” (Opinion 02-21).
As the judge will not be soliciting funds but, instead, will discuss his/her memories of the college, its impact on the judge’s career, and provide a message to this year’s graduates, as permitted by prior opinions (see Opinion 91-19 [Vol. VII]), the Committee believes the judge’s proposed involvement in his/her alma mater’s recruitment efforts is not rendered impermissible by the fact that his/her message will be recorded as a video (see generally Opinion 00-102 [Vol. XIX]). Moreover, even though the video will be shown at a fund-raising event, the Committee has advised that a judge may appear in a not-for-profit organization’s non-fund-raising video in honor of certain local professionals where the “clip will show the judge at work, with the judge’s name and title printed on the screen” (Opinion 00-31 [Vol. XIX]). The Committee emphasized that there must be “no reference ... to the judge or the video in advertising the luncheon or in soliciting attendance or contributions” and that the content of the video must not relate to fund-raising (id.). The Committee likewise believes the judge may permit the college to play the judge’s video message during the gala fund-raiser, subject to the same limitations. The judge may also permit the college to post the video online after the fund-raiser, provided the video is used for general promotion of the college and/or recruitment of students, rather than for fund-raising (cf. Opinion 14-45 [a judge who accepts an (unannounced) award from his/her alma mater at a fund-raiser may thereafter be listed as an award recipient on the college’s website]).
Although the Committee has advised that a judge may not wear judicial robes when welcoming prospective students and their families in person to his/her alma mater’s open house, in order to “avoid any implication of official approval or support” of an on-campus recruitment event (see Opinion 02-38), the Committee has also advised that a judge engaged in permissible recruitment activities for his/her alma mater may identify him/herself as a judge in written materials (see Opinions 02-21 [judge’s biography may be included]; 91-19 [Vol. VII] [judge may use court stationery marked “personal and unofficial”]; 88-79 [Vol. II] [judge’s resume may be included]). In the Committee’s view, it is likewise permissible for the judge to wear judicial robes in the proposed video recording (see Opinion 00-102 [Vol. XIX] [“The wearing of judicial robes [in a television film about Italian-Americans of note] is simply a signification of judicial status, which, in view of the purpose of the filming, is also appropriate.”]). Regarding filming in chambers, the judge should comply with applicable administrative requirements under Section 29.1 of the Rules of the Chief Judge (see 22 NYCRR 29.1; Opinion 00-102 [Vol. XIX]).
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1 The broader exception for a “court employee organization, bar association or law school” does not apply to a college (Opinion 14-45; 22 NYCRR 100.4[C][3][b][ii]).