Formal Opinion 1987-5

June 2, 1987

ACTION: Formal Opinion

OPINION:

In N.Y. City 883 (1973), this Committee presented an extensive discussion of general ethical principles and prohibitions in the conduct of judicial elections. The Committee on Professional Ethics of the New York State Bar Association simultaneously issued a textually identical opinion, N.Y. State 289 (1973). Among other things, it was stated in section C(5) of those opinions that incumbent judges should not take “unfair advantage” of their office by using campaign material that depicts them in court, or in judicial robes.

In N.Y. State 558 (1984), and with this Committee’s unpublished concurrence, the prohibition against the wearing of judicial robes in campaign materials was modified to permit such use if the judge was lawfully entitled to wear judicial robes and customarily did so in the performance of judicial duties. The other prohibitions contained in N.Y. City 883 and N.Y. State 289, including the proscription against depiction in court, remained unchanged.

The State Bar Committee has further modified its views on the use of judicial robes in campaign materials to permit such use provided only that the judge is lawfully entitled to wear such robes and regardless of whether the judge customarily does so in the performance of judicial duties. We agree that no violation of the Code of Judicial Conduct would occur in these circumstances, because the identity of the judge is not misrepresented by being depicted in judicial robes, “even if the judge does not wear robes in the course of his duties, because it does not constitute a representation that he wears his robes, but only that he is a judge and is entitled to wear them.” N.Y. State 581 (1987).

Accordingly, we amend N.Y. City 883 to delete the prohibition in section C(5) against the use, by an incumbent judge who is entitled to wear robes, of campaign material in which the judge is depicted wearing judicial robes.