Opinion 19-09

January 31, 2019


Digest:         A full-time judge may take a multi-week improvisational comedy class from a for-profit entity, but may not perform in the graduation show, which charges admission. Additionally, the judge may perform a first-person story about his/her childhood or cultural background only if the entity producing the event is a non-profit and the show is not a fund-raiser. The analysis does not change if the judge performs anonymously and/or uses a pseudonym.


Rules:          22 NYCRR 100.2; 100.2(A); 100.4(A)(1)-(3); 100.4(C)(3)(b)(I), (iv); 100.4(D)(3); Opinions 18-48; 18-47; 18-34; 16-85; 16-05; 15-103; 08-81; 08-25; 00-24; 99-86; 98-155.




         A full-time judge asks if he/she may (1) take a multi-week class on improvisational comedy and perform in a “graduation show” for which the judge’s name will not be publicized but will have a $10 admission charge, and (2) perform a first-person story about his/her childhood or cultural background, for which the judge will not be compensated but is part of (a) a show located at a bar where there is a suggested donation or drink minimum; (b) a show produced by an individual selling tickets to the show; (c) a show produced by a non-profit organization; or (d) a podcast. We note the judge asks only about planned storytelling performances, and our opinion is limited to these facts. The judge further asks if the analysis would change were the judge to perform under a pseudonym or otherwise remain anonymous.


         A judge must always avoid even the appearance of impropriety (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 generally engage in extra-judicial activities so long as those activities are not incompatible with judicial office and do not cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A full-time judge must not serve as “active participant of any business entity” (22 NYCRR 100.4[D][3]). When involved with a not-for-profit organization, the judge must not “personally participate in the solicitation of funds or other fund-raising activities” (22 NYCRR 100.4[C][3][b][I]) and must not “use or permit the use of the prestige of judicial office for fund-raising or membership solicitation” (22 NYCRR 100.4[C][3][b][iv]).


1. Taking a Comedy Class at a For Profit Entity


The improvisational comedy class and graduation show here are produced by a local theater. According to the theater’s website, students pay $400 for an 8-week introductory class that culminates in a graduation show. The theater offers 15 comedy courses ($200-$450 each), drop-in group classes for $20 per session, as well as professional development classes and private instruction. It also produces shows unrelated to the graduation shows, typically charging around $10 admission and maintains a full bar at one of its locations. The theater does not request charitable donations or claim any not-for-profit status. As such, the theater appears to be a for-profit entity.


We have advised that a full-time judge cannot appear as an actor in a production by a for-profit company or act in a commercial television program, even if he/she is not being compensated (see Opinions 00-24; 99-86). Similarly, a full-time judge must not advise a comedian on how to portray a judge in a commercial television show, even though the interview would not be aired, the judge would not be credited, and the judge would decline the honorarium offered by the television station (see Opinion 08-25).


Accordingly, while we believe the judge may enroll in the improvisation course and participate in the regular class sessions, the judge must not perform in the graduation show, for which tickets are sold, even if the judge’s participation is not advertised, because the judge would be an active participant in a business entity (see 22 NYCRR 100.4[D][3]; Opinions 08-25; 00-24; 99-86).


2. Planned Storytelling Performances


         Similarly, with regards to a full-time judge performing a first-person story about his/her childhood or cultural background, the central inquiry is whether the platform through which the judge performs is produced by a for-profit or not-for-profit entity.


         Where the judge’s performance would be (a) located at a bar where there is a suggested donation and/or drink minimum or (b) produced by an individual selling tickets to the show, the judge would be an active participant in a for-profit storytelling show. This is impermissible for a full-time judge (see 22 NYCRR 100.4[D][3]; Opinion 00-24).


         Conversely, the judge may participate in a storytelling show produced by a not-for-profit entity, assuming the event is not conducted for fund-raising purposes (see Opinions 00-24; 98-155; 18-47 [discussing prior opinions]). Indeed, a full-time judge may appear as an actor in a play, under the judge’s own name, and may even be compensated for his/her efforts, but only if the theater group is a not-for-profit organization and no attempt is made to use the judge’s position for financial gain or promotion (see Opinion 00-24).


         A full-time judge may participate in a podcast, provided that the podcast is non-commercial in nature and not sponsored by a for-profit entity (see Opinions 18-34; 16-05). Thus, we conclude the judge may engage in personal storytelling on non-commercial podcasts that are not sponsored by law firms or other for-profit entities.


         As a reminder, even where the judge is permitted to participate in storytelling events, the judge should be mindful that his/her actions are still subject to applicable limitations on judicial speech and conduct (see e.g. Opinions 18-47; 18-48).


3. Effect of Performing Anonymously and/or Using a Pseudonym


         Concealing one’s name and judicial status does not ordinarily render prohibited conduct permissible (see Opinions 16-85; 15-103). Thus, the above analysis would not change if the judge’s performance were uncredited (see Opinions 08-81; 08-25) or if the judge’s name and judicial status were concealed (see Opinion 16-85). Likewise, the judge may not engage in impermissible conduct under a pseudonym.