May an incumbent New York judge be shown wearing judicial robes in campaign material for re-election or for another judicial office?

Plain-English summary

The committee was asked whether an incumbent judge may be shown wearing judicial robes in campaign material during a campaign for re-election or for election to another judicial office. Canon 7(B)(1)(c) of the Code of Judicial Conduct provides that a candidate should not "misrepresent his identity, qualifications, present position, or other fact." Earlier guidance (N.Y. State 289 (1973) and N.Y. City 882 (1973)) had said an incumbent judge's campaign material should not arouse reasonable suspicion that the judge was using the power or prestige of judicial office to promote the candidacy, and had originally barred showing the judge in court or in robes. That prohibition rested on Canon 30 of the former Canons of Judicial Ethics, language the committee noted was not carried over into the Code of Judicial Conduct.

The committee traced the shift away from the old bar. ABA Informal Op. 1450 (1980) found no violation when an incumbent judge in a re-election campaign allowed use of a photograph of the judge in robes, if otherwise proper and if the judge normally wears the robe in performing judicial duties. Responding to that opinion, N.Y. State 558 (1984) adopted ABA Informal Op. 1450's position and modified paragraph C(5) of N.Y. State 289 to delete the prohibition against robe depictions, though it appeared to preserve the "normally wears the robe" qualifier.

This opinion removed even that qualifier. The committee reasoned that being depicted in robes does not misrepresent identity, qualifications, or present position under Canon 7(B)(1)(c), even where the judge does not normally wear robes, because it represents only that the person is a judge entitled to wear them, not that the judge habitually does. The committee accordingly modified N.Y. State 289 (1973) and N.Y. State 558 (1984) to the extent that an incumbent judge may be shown in judicial robes in campaign material, whether or not the judge customarily wears them, and answered the question in the affirmative.

Currency note

This opinion was issued in 1987 and interprets the New York Code of Judicial Conduct as it then stood. New York later restructured judicial-conduct regulation under the Rules Governing Judicial Conduct (22 NYCRR Part 100) and revised its attorney rules in 2009. 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, deadline, or requirement mentioned here.

Common questions

Q: Could an incumbent judge use a photo in robes in campaign material?

A: Yes. The committee concluded there is no restriction on showing an incumbent judge in judicial robes in campaign material.

Q: Did it matter whether the judge normally wore robes on the bench?

A: No. The committee removed the earlier "normally wears the robe" qualifier, holding the depiction proper whether or not the judge customarily wears robes.

Q: Why was a robe depiction not a misrepresentation?

A: The committee reasoned that showing the judge in robes represents only that the person is a judge entitled to wear them, not that the judge habitually wears them, so it does not misrepresent identity, qualifications, or position under Canon 7(B)(1)(c).

Background and rules framework

The opinion interpreted Canon 7(B)(1)(c) of the New York Code of Judicial Conduct, governing campaign conduct by judicial candidates, and traced the evolution from Canon 30 of the former Canons of Judicial Ethics. It expressly modified two prior committee opinions, N.Y. State 289 (1973) and N.Y. State 558 (1984).

Citations and references

Rules of Professional Conduct:

• Code of Judicial Conduct Canon 7(B)(1)(c) (candidate shall not misrepresent identity, qualifications, or present position)

Other opinions cited:

• N.Y. State 289 (1973): campaign-material guidelines for incumbent judges (modified)
• N.Y. State 558 (1984): adopted ABA Informal Op. 1450; deleted the robe prohibition (modified)
• N.Y. City 882 (1973): power-or-prestige standard for incumbent-judge campaign material
• ABA Informal Op. 1450 (1980): no violation in using a robe photograph if the judge normally wears the robe

See also

• NY State Bar Op. 586: Judicial candidate and judge political contributions
• NY State Bar Op. 585: Judge membership in a bar association with a PAC
• NY State Bar Op. 612: Judge's campaign use of the "Judge" or "Justice" title

Source

• Landing page: https://nysba.org/opinion-581/