March 29, 2018
Digest: A full-time quasi-judicial official may not appear on a private law firm’s podcast.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(3); 100.6(A); Opinions 17-163/18-03/18-21; 16-134; 16-05; 09-92; 01-58.
A law firm has invited the inquiring full-time court attorney-referee to appear on the firm’s podcast to discuss (1) general topics concerning practice and procedure in matrimonial law, (2) the referee’s education and experience practicing law, and (3) “new trends in the law and how they are affecting us here” in a particular locality. The podcast hosts “never talk about things [their] guests are not comfortable discussing” and do not discuss “real cases” absent prior written consent. It would be an uncompensated one-time appearance. The referee advises that members of the sponsoring law firm, including one of the co-hosts, appear before him/her “from time to time.” The podcast is pre-recorded and made available for free on the law firm’s website and multiple podcast-sharing sites. The referee would not discuss his/her own cases or decisions nor comment on pending or impending litigation.
Court attorney-referees must comply with the Rules Governing Judicial Conduct in the performance of their quasi-judicial duties, and “so far as practical and appropriate” use the rules to guide their conduct (see 22 NYCRR 100.6[A]). Accordingly, they must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to further public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). They must not lend the prestige of judicial office to advance private interests, or permit anyone to convey the impression that they are in a special position to influence them (see 22 NYCRR 100.2[C]). Further, a court attorney-referee also must not serve as an “active participant of any business entity,” unless an exception applies (22 NYCRR 100.4[D]; see also Opinion 16-134).
We have said a full-time judge may participate in non-commercial podcasts about New York legal issues or science fiction and comic book characters and legal issues that may arise in fictional works, subject to generally applicable limitations on judicial speech and conduct (see Opinion 16-05 [noting the judge’s participation “must not be used to promote or market the podcast”]). Such permissible non-commercial podcasts are often sponsored by individuals or not-for-profit entities (e.g. public radio stations, libraries, and museums).
Here, too, the podcast is made freely available and thus is not, in and of itself, a profit-making venture. The key difference is that the sponsoring entity is a private law firm, which also appears before the referee on behalf of clients. We can only presume a for-profit law firm which prepares and distributes a free podcast to the public on its website and elsewhere does so for commercial reasons, i.e. primarily for marketing or promotional purposes. We therefore believe participation in the podcast would “associate the [referee] with the competence of a private law firm and would serve the exclusive interests of that firm” (Opinion 01-58).1 Because the podcast appears to be a vehicle to promote the interests of one private law firm, we consider it an impermissible news program within the meaning of Opinion 17-163/18-03/18-21.
In essence, the referee’s participation could be seen as lending the prestige of quasi-judicial office to advance the law firm’s private interests and could unintentionally convey the impression the firm is in a special position to influence the referee (see 22 NYCRR 100.2[C]; cf. Opinion 09-92 [a judge “may not present an updated in-house CLE program for his/her former law firm’s lawyers and paralegals about research tools on the world wide web,” even if he/she is only “imparting knowledge acquired while he/she worked at the firm,” because his/her participation “could create an appearance of impropriety and cast reasonable doubt on the judge’s ability to be impartial”]).
1 We recognize that Opinions 01-58 and 09-92 contemplate a law firm inviting a judge to speak privately to its associates or employees, whereas this podcast will be shared freely with the general public.