October 25, 2001
Please Note: This opinion has been overruled or modified by Joint Opinion 17-163/18-03/18-21, to the extent it prohibits a full-time judge from participating in a commercially produced documentary without compensation. However, we noted in Opinion 20-208 that “our concern about the broad language in an appearance release remains unaffected.”
Digest: A full-time judge should not participate in an educational video production about the judicial branch of government that is being produced by a for-profit entity.
Rule: 22 NYCRR 100.4(A)(3); 100.4(D)(3); Opinions 98-121 (Vol. XVII), 98-141 (Vol. XVII), 98-156 (Vol. XVII).
The inquiring full-time judge has been asked by a commercial television production company to participate in an educational video series on the American system of government, which would include a program on "The Judicial Branch." The intention would be to sell the video for use in schools and libraries. The judge would participate in a short interview and would receive no compensation. Whether participation in such a project is ethically permissible is the question posed by the judge.
In earlier opinions, the Committee concluded that a full-time judge may participate in preparation of an educational video to be produced by a non-profit legal educational organization for use in a Continuing Legal Education Program [Opinion 98-156 (Vol. XVII)] and a video production by a not-for-profit group intended to educate teenagers about the court system and police procedures [Opinion 98-141 (Vol. XVII)]. In contrast, in Opinion 98-121 (Vol. XVII), the Committee advised that a full-time judge may not teach a litigation course for a commercial proprietary educational institution, i.e. a for-profit entity, because section 100.4(D)(3) of the Rules Governing Judicial Conduct specifically prohibits a full-time judge from, among other things, being an "active participant of any business entity." 22 NYCRR 100.4(D)(3).
Here, the entity in question is a for-profit organization and thus is a business entity, thereby precluding the judge's active participation. The role contemplated for the judge constitutes active participation and thus the judge should not participate. Further, we note that the judge is required to sign a standard appearance release, thereby relinquishing any control over the final product and thus creating the danger that the judge's contribution may be used in ways that may "detract from the dignity of judicial office" (22 NYCRR 100.4[A], or are otherwise inappropriate.