Participating in University's Video Profile Series

June 20, 2017

You earned your undergraduate degree at a university located in Massachusetts. That school’s University Relations department has invited you to participate in a video profile series featuring prominent alumni. Each two to three minute video features one former student discussing the many ways in which his or her undergraduate education helped the student to identify goals, aspire to a career, and achieve success at the highest level. The videos typically include visual images of the university's campus. Each video ends with a "tag line" in which the subject of the profile announces that he or she "stands with" the school. The videos appear on the school's website and on its social media channels. They are used for "general campus promotion," but not for any fundraising initiatives. You ask whether you may be the subject of a video profile.

According to its webpage, the University Relations department "harnesses the resources and expertise of [the university's] broad portfolio in a coordinated and strategic way to ensure that the powerful message of [the university] reaches all of our varied audiences, both internal and external." The website of the Video Profile Series explains that visitors will "get a firsthand account of how [the university] has been a transformative force in the lives of those who study, do research, and teach here. These are the inspirational stories of students, faculty, and alumni who are having a positive impact across Massachusetts and around the world."

The Committee believes that your participation would violate Rule 1.3 of the Code of Judicial Conduct, which states, "A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so." The phrase "personal or economic" interest embraces "virtually all interests other than interests possessed by the judiciary or the public at large." See Massachusetts Advisory Opinion 2000-6 (interpreting the 2003 Massachusetts Code).

The meaning of "abuse" in Rule 1.3 is more elusive. The 2003 Massachusetts Code, which was based on the ABA Model Code of 1990, prohibited a judge from "lending" the prestige of judicial office. The ABA substituted "abuse" for "lend" in its 2007 Model Code. The Reporter's Notes to the ABA Model Code explain that the substitution was made because the term "lend" created unnecessary confusion:
For example, a judge who writes a letter of recommendation for a law clerk 'lends' the prestige of the judge's office to the recommendation in the ordinary sense of the term. Some judges told the Commission [reviewing the ABA Model Code] that they decline to write letters on their clerks' behalf as a consequence. In the Commission's view, the judge who uses the prestige of his or her office in this way has done nothing problematic. Similarly, judges who simply identify themselves as judges on the jackets of books that they write arguably add to their credibility among readers and may increase sales, and are therefore 'lending' the prestige of office to advance their personal or economic interests. Again, however, this kind of use is ethical, as long as the judge does not exploit his or her position in inappropriate ways. The problem that Rule 1.3 seeks to address is therefore more accurately characterized as the abuse of the prestige of judicial office.

Comment [1] to the Model Code begins by stating, "It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind." It then gives some clear cut examples of abuse: a judge who alludes to his or her judicial status to gain favorable treatment following a traffic stop, or a judge who uses judicial letterhead to gain an advantage in conducting his or her personal business.

The Committee believes that "abuse" as used in Rule 1.3 of the 2016 Massachusetts Code of Judicial Conduct does not require a judge to act with a bad purpose or to bad effect. Massachusetts Rule 1.3 prohibits use of the prestige of judicial office in any way that is incompatible with the judicial role. Such conduct may be described as "abuse" of the judicial office because public confidence in the integrity and impartiality of the judiciary is undermined whenever a judge "collaterally misuses" the judicial office to advance the judge's or another's personal or economic interests. See Geyh, Alfini, Lubet, and Shaman, Judicial Conduct and Ethics (Lexis Nexis, 5th ed. 2013) at 10-4 - 10-5. Rule 1.3 of the Massachusetts Code of Judicial Conduct prohibits a judge from using or permitting use of the prestige of the judicial role to advance any interest inconsistent with a judge's obligation to promote confidence in the judiciary, even when the interest is as worthy as promoting the value of a university's education.

We agree with the distinctions drawn in Massachusetts Advisory Opinion No. 2000-6 contrasting an impermissible print advertisement featuring a judge's endorsement of a university with a permissible booklet printed by a law school that included photographs and biographical sketches of its alumni judges. The Advisory Opinion observed that while the law school booklet "place[d] facts before the public in a context that invites inferences favorable to the University," the proposed advertisement "present[ed] to the public an endorsement deriving much of its considerable impact from the judicial office you hold." The Advisory Opinion concluded that "the advertisement clearly and substantially uses the prestige of [judicial] office to advance the University's private interests," and "does so in a way that cannot fairly be viewed as a manifestation of the ordinary pride all institutions of higher learning take in the accomplishments of their highly successful graduates."

Similarly, in this instance, it is clear to the Committee that the reason the university wishes to include you in its video profile series is to benefit from your esteemed position in the legal profession. In each video the Committee has reviewed, the participating alumni or alumna personally vouches for the "transformative effect" of the university's educational experience. The concluding "tag line" in which the subject announces that he or she "stands with" the university reinforces that the video is intended to serve as an endorsement. That the video would not be used in a fundraising campaign is not dispositive(1). The university intends the video profile series to enhance its reputation. The videos will be used to promote the school to prospective students and reinforce its import to alumni and others. Your participation would allow the university to use the prestige of your judicial office to advance its interests. This conduct would constitute the abuse of the prestige of judicial office in violation of Rule 1.3.

(1) We are aware that some states’ Ethics Advisory Committees have permitted judges to participate in university advertising campaigns not intended for fundraising. See, e.g., Florida Jud. Ethics Adv. Comm. Op. 97-28 (1997); Illinois Jud. Ethics Comm. Op. 99-3 (1999); N.Y. Adv. Comm. on Jud. Ethics Op. 02-21 (2002). Some other Ethics Advisory Committees have prohibited judges from such participation. See, e.g., Kan. Jud. Ethics Op. JE-159 (2007); Wis. Jud. Conduct Adv. Op. 05-01 (2005).