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]; 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]; 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