Opinion 09-37

January 29, 2009

Digest:         A judge may be interviewed and photographed for an on-line commercial magazine article about personal grooming decisions. The judge should not endorse any particular products, and must otherwise comply with the Rules Governing Judicial Conduct in participating in the interview.

Rules:         22 NYCRR 100.2; 100.2(A);100.2(C); 100.4(A) (1)-(3); Opinion 04-117

Opinion:

         A judge asks whether he/she and several judicial colleagues may be interviewed by the judge’s friend for an article that will be published in an on-line commercial magazine. The article also will be accompanied by photograph(s) of one or more of the interviewees. The article is intended to be an “inspirational story” about members of the judiciary who have made certain personal grooming decisions. The magazine will not compensate the judges for their participation.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities so long as they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]).

         In Opinion 04-117, the Committee advised that a judge could be interviewed by a friend for a magazine article that would focus primarily on the non-judicial aspects of the judge’s life, but also would examine one aspect of the judge’s judicial position. In the Committee’s view, it was unlikely under these circumstances that the judge’s judicial position would impact the magazine’s decision to either accept or reject the article for publication or that the author’s compensation would be enhanced by the judge’s position (see id.).

         Similarly, the judge in the present inquiry may participate in an interview for an article intended to be an “inspirational story” about members of the judiciary who have chosen to present themselves in a certain way and may allow his/her photograph to be included in the article that will be published in an on-line commercial magazine. Because the article will not involve or discuss judicial functions at all, there is little if any risk that the judge can be viewed as lending the prestige of judicial office to advance the private interests of another (see 22 NYCRR 100.2[C]). However, in keeping with the dictates of §100.4(A) (1) - (3) of the Rules Governing Judicial Conduct, the judge should not endorse any particular hair care product or process. Nor should he/she allow the interview to be conducted in the courthouse or otherwise permit the interview or ensuing article to interfere with the proper performance of his/her judicial duties (see id.).