CJE Opinion No. 2009-2
Selling, Donating and Exhibiting Landscape Photographs
May 1, 2009
You have asked a series of related questions concerning the propriety of exhibiting and selling landscape photographs as an avocational activity. The Committee has previously concluded that the sale and exhibition and sale of fine art paintings was permitted provided the judge was not conducting a business as an artist (CJE Opinion No. 2001-18). Whether an activity would constitute a business depends on the scope of the undertaking and, typically, depends on the amount of time the activity requires, the activity's complexity and the revenue it generates. See, e.g., CJE Opinion 2004-6.
Section 4D(1) provides that:
A judge shall refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality, that may interfere with the proper performance of the judge's judicial position, that may reasonably be perceived to exploit the judge's judicial position, or that may involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves.
From your description of what you intend to do, your periodic donation or sale of the fruits of your creative labor after hours does not produce the dangers against which Section 4D(1) is designed to guard. You indicate that your involvement in exhibiting, selling or donating photographs would be limited to weekend hours, and during approved vacation time. You also expect that sales and donation will be modest in terms of volume and value. Your primary interest is in creating, not selling, your art. Provided that your activity does not impinge on the performance of your judicial responsibilities during or after the standard work day you should be able to exhibit and sell your work in the manner you have described. (See e.g. CJE Opinion No. 99-14 concerning consultation on a television legal drama and CJE Opinion No. 2007-3 regarding acting as a softball umpire).
You should make every effort to ensure that your judicial title is not used to confer any benefit or remuneration that a private party would not receive. Given this admonition you should be circumspect about donating your work to charitable organizations or public institutions for their fund raising events if prospective purchasers are likely to be influenced by your status as a judge. A judge, "shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation." Section 4C(3)(iv). As regards your other questions, you should be able to occasionally sell your work directly or indirectly to private parties in or out of state.