Opinion 16-176

January 26, 2017

Please Note: While it does not affect the outcome here, see AO-347 concerning the status of Section 100.4(H)(2).

Digest:         A full-time judge may not accept a collectable music album from a press photographer who regularly covers cases in the inquiring judge’s courtroom.

Rules:          22 NYCRR 29.1(a); 100.2; 100.2(A); 100.4(A); 100.4(D)(5)(a)-(h); 100.4(H)(2); Opinions 16-73; 16-35; 15-122; 13-151.

Opinion:

         A full-time judge asks if he/she may accept a music album from a press photographer as a gift. This photographer, like others who cover cases in the judge’s courtroom, relies on the judge’s permission to photograph certain components of court proceedings for publication.¹ The photographer offered the gift to either the judge or his/her minor child after learning from the judge that his/her child “has long been seeking out a fairly priced copy of the album.” The judge says the album is a collector’s item, whose value ranges from about $20 to $100 depending on its condition.²

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In accordance with the Rules Governing Judicial Conduct, a judge may accept certain specified gifts (see 22 NYCRR 100.4[D][5][a]-[g]). A judge may also accept “any other gift ... only if: the donor is not a party or other person who has come or is likely to come or whose interests have come or are likely to come before the judge” (22 NYCRR 100.4[D][5][h]), as long as the gift does not create an appearance of impropriety or otherwise violate the Rules, and subject to certain reporting requirements in the case of a full-time judge (see 22 NYCRR 100.4[H][2]). A judge must also “urge members of [his/her] family residing in [his/her] household” to abide by the same gift restrictions that apply to the judge (22 NYCRR 100.4[D][5]).

         In previous opinions, this Committee has allowed a judge or quasi-judicial official to accept a similarly valued gift where the donor’s interests have never come before the judge in his/her judicial capacity and it would be highly unlikely the donor’s interest would come before this judge or any other official of the Unified Court System (see Opinions 16-35; 13-151). However, we have advised a judge to decline a food platter from a former judge, now practicing in the inquiring judge’s court, observing that if the judge accepted it, “the public might reasonably infer that the attorney’s status as a former judge places him or her in a special position to influence the judge” (Opinion 15-122).

         Here, the proffered gift does not fall into any of the enumerated types of permissible gifts or the catch-all exception. The press photographer has a professional interest in covering cases in the judge’s courtroom, and this interest regularly comes before the inquiring judge. Indeed, this photographer is one of many seeking to take photographs in the judge’s courtroom, and all such photographers require the judge’s permission to photograph the proceedings. In the Committee’s view, accepting the gift may also create an appearance of impropriety, as there is a danger the public will infer this photographer is seeking to curry favor and/or influence the judge. For similar reasons, other press photographers covering the judge’s courtroom, on learning of the gift, could also feel pressured to make similar gifts to remain competitive for future permissions to be granted. Thus, this judge may not accept the photographer’s proposed gift, either directly or on behalf of his/her child (see 22 NYCRR 100.4[D][5][h]; cf. Opinion 16-73 [“As there is no other basis for the judge’s family to attend the program, other than their kinship to the judge, the judge also may not permit his/her family to accept the invitation”]).

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         ¹ The taking of “photographs, films or videotapes, or audio taping, broadcasting or telecasting, in any courthouse including any court room” is subject to administrative approval and compliance with specifically enumerated proscriptions (22 NYCRR 29.1[a]).

         ² As the album does not appear to be in mint condition, the judge believes its value would be toward the lower end of the scale.