Can an incumbent judge use campaign materials that show the judge wearing judicial robes?

Plain-English summary

In N.Y. City 883 (1973), and the textually identical N.Y. State 289 (1973), the committee had said that incumbent judges should not take unfair advantage of their office by using campaign materials depicting them in court or in judicial robes. The State Bar committee later modified the robe prohibition, first to permit the depiction if the judge was lawfully entitled to wear robes and customarily did so (N.Y. State 558 (1984), with this committee's unpublished concurrence), and then to permit it so long as the judge was lawfully entitled to wear robes, whether or not the judge customarily wore them (N.Y. State 581 (1987)).

This committee agreed with that further modification, reasoning that depicting a judge in judicial robes does not misrepresent the judge's identity: it does not represent that the judge wears robes in the course of duties, only that the judge is a judge and is entitled to wear them. The committee therefore amended N.Y. City 883 to delete the prohibition in section C(5) against an incumbent judge who is entitled to wear robes using campaign material depicting the judge in robes. The committee left the other prohibitions of N.Y. City 883 and N.Y. State 289, including the bar against depiction in court, unchanged.

Currency note

This opinion was issued in 1987 and interprets the New York Code of Judicial Conduct as it then stood. New York later substantially revised the Rules Governing Judicial Conduct (22 NYCRR Part 100), effective January 1, 1996, including the rules on judicial campaign conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can an incumbent judge appear in judicial robes in campaign materials?

A: The committee concluded yes, if the judge is lawfully entitled to wear robes, because the depiction does not misrepresent the judge's identity.

Q: Does the judge have to customarily wear robes for this to be allowed?

A: The committee concluded no; the depiction is permissible whether or not the judge customarily wears robes in performing judicial duties.

Q: Can a judge use campaign material showing the judge sitting in court?

A: The committee concluded that the other prohibitions of N.Y. City 883, including the bar against depiction in court, remained unchanged; only the robe prohibition was deleted.

Background and rules framework

The opinion interprets the New York Code of Judicial Conduct's restrictions on judicial campaign conduct (Canon 7), as applied in the committee's earlier Opinion 883 and the parallel State Bar opinions, focusing on whether campaign depictions misrepresent a judge's status. These campaign-conduct restrictions correspond to the political-activity provisions later carried into New York's Part 100 rules and the ABA Model Code of Judicial Conduct.

Citations and references

Rules of Judicial Conduct:

• New York Code of Judicial Conduct Canon 7 (campaign and political activity) (applied in the opinion)

Other opinions cited:

• N.Y. City 883 (1973), amended by this opinion; N.Y. State 289 (1973)
• N.Y. State 558 (1984); N.Y. State 581 (1987): modifications permitting depiction in robes

See also

• NYC Bar Formal Op. 1988-1: Judges' Participation in Bar Association Committee Activities
• NYC Bar Formal Op. 1988-2: A Judge Serving as Executor of a Close Friend's Estate

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1987-5/