Donating, Selling, and Exhibiting Photographs
April 11, 2016
You have asked a series of related questions concerning donating, exhibiting, and selling photographs as an avocational activity. You are an amateur photographer and a member of a local camera club. You report that your photography activities are conducted during your personal time and do not interfere with your judicial duties. You also state that you do not intend to form or operate a business so long as you serve as a judge (1).
Exhibition Hosted by an Art Gallery
You ask whether your photographs may be included in exhibitions in which the items on display may be purchased for a fixed price, which is typically divided between the artist and the exhibitor. You would be identified by name, but there would be no reference to your judicial title. The Committee believes this conduct complies with the Code, so long as your participation does not become so extensive that you would be conducting a business. See Rule 3.11 and Comment . You must of course report your earnings on the annual Public Report of Extra-Judicial Income promulgated by the Supreme Judicial Court. See Rules 3.12 and 3.15. We note that under the predecessor Code (in effect through December 31, 2015), a third party selling your work was required to withhold from you the identities of any purchasers of your art. See CJE Op. No. 2001-18. We do not believe the 2016 Code requires that this information be withheld from you in these circumstances, as the purchasers are not likely to appear in front of you as a lawyer or party. If, however, a known purchaser of your photographs does appear in front of you as a lawyer or party, you will have to consider whether circumstances are such that there may be grounds for disqualification or disclosure. See Rule 2.10(A) and (C).
Exhibition Hosted by a Law-Related Non-Profit Organization
You also ask whether you may donate photographs or license photographic images to a law-related non-profit organization, such as the Social Law Library, for the purpose of allowing the organization to exhibit the photographs and offer them for sale. You would be identified by name, but there would be no reference to your status as a judge. You would not be informed of the identities of purchasers, and all profits would be retained by the law-related non-profit organization. Under these facts, we have to assume that purchasers, who would likely be lawyers, would be aware of your judicial role.
The Code prohibits a judge from soliciting contributions for an organization, including a law-related non-profit organization, except from members of the judge's family or judges over whom the judge does not exercise supervisory or appellate authority. Rule 3.7(A)(4). But under the circumstances you describe, your participation in fundraising would be sufficiently indirect that we do not believe it would violate the prohibition against solicitation. Also, because you will not be told the identity of those who purchase your photographs, there is no risk of the appearance of preferential treatment or favoritism that may arise should a purchaser of your work appear before you. If, however, you become aware that a purchaser of your photographs is (or is scheduled to be) before you, you will have to consider whether circumstances are such that there may be grounds for disqualification or disclosure. See Rule 2.10(A) and (C).
(1) This opinion relies on the facts you have provided to the Committee on Judicial Ethics. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force and effect.