Opinion 25-33
March 27, 2025
Digest: A full-time judge may appear as an unpaid guest on a non-commercial “educational and humorous” podcast to speculate with the host about an unfamiliar topic as a prelude to elucidation by a more knowledgeable person. The judge may be identified as a judge in connection with the episode, but his/her participation may not otherwise be used to market the overall podcast or promote any other private interest.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 24-87; 23-01; 22-75; 19-09; 16-05; 06-105.
Opinion:
A full-time judge asks if it is ethically permissible to appear as an unpaid guest on an episode of a friend’s non-commercial “educational and humorous” podcast which will use speculations about an unfamiliar topic as a prelude to elucidation by a more knowledgeable person. In essence, “a person who may have some expertise in some general subject (law, economics, endocrinology, etc.) is asked to discuss with the host a subject neither knows much about. At the end of a ten-minute discussion, in which they speculate on the nature of that subject, an ‘expert’ enters and discusses and critiques the speculations of the host and guest, providing facts.” Given this podcast format, the judge’s topic will be unrelated to the law. Although the exact topic will be a surprise, the judge’s friend has given examples such as “Pangea, pheromones, the Sun, the combustion engine, etc.”
A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]), and a full-time judge also must not serve as an “active participant of any business entity” (22 NYCRR 100.4[D][3]). A judge may nonetheless engage in extra-judicial activities, including teaching and lecturing, as long as they are compatible with judicial office and 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 (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]).
Judges may participate in podcasts, subject to generally applicable limitations on judicial speech and conduct (see Opinions 23-01; 16-05). For example, a full-time judge may “engage in personal storytelling on non-commercial podcasts that are not sponsored by law firms or other for-profit entities” (Opinion 19-09). A judge may also “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” (Opinion 16-05). Indeed, we have said that a full-time judge may “create and participate in a series of non-commercial podcasts to highlight individuals whose accomplishments have had an inspirational and positive impact on the community,” subject to certain limitations in light of the subject matter (see Opinion 23-01).
On the facts presented, we conclude that the permissibility of the judge’s participation depends on the non-commercial nature of the podcast (cf. 22 NYCRR 100.4[D][3]). Thus, we conclude that the judge may participate in the described podcast, subject to generally applicable limits on judicial speech and conduct (see Opinions 23-01; 16-05).
The judge need not conceal his/her status as a judge (see e.g. Opinions 16-05; 06-105),[1] and may allow the podcast host to announce his/her participation in advance (cf. Opinion 22-75 [judge may permit not-for-profit organization to use judge’s name, likeness, and title in social media promotions advertising non-fund-raising event]). Accordingly, the judge may be identified as a judge in connection with the episode, but his/her participation may not otherwise be used to market the overall podcast or promote any other private interest (see Opinion 16-05; 22 NYCRR 100.2[C]; cf. Opinion 24-87 [judge’s judicial status may be mentioned in his/her biography in a screenplay pitch packet, but must not be used for promotion of the screenplay or any resulting film]). To this end, the judge must advise the podcast host not to use the judge’s episode to promote the podcast as a whole or any private interests.
Finally, we note that the judge contemplates participating in the podcast at a relatively early stage. In the event the podcast later becomes commercialized, the judge should seek further advice from the Committee before recording another episode so that we can consider all applicable facts and circumstances at that time.
[1] We reached a different result in Opinion 23-01, where a judge was the sole creator and host of a non-commercial podcast featuring “positive role models or heroes in the community.” Given that the judge was “personally selecting” individuals to interview as “role models or heroes,” we advised that “the judge should not refer to their judicial status in connection with the podcast” (id.). No such concerns are implicated here.