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Opinion

Opinion CJE Opinion No. 2001-18

Date: 12/18/2001
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Creating, Exhibiting, and Selling Fine Art Paintings

You have asked whether you may exhibit for sale and sell your fine art paintings. You have indicated that you have been a painter for years and have exhibited your art in the past. At present you wish to display your paintings for sale at two art galleries. In the past you have shown your work at a club's members' exhibition. You write that you received informal advice from this Committee that such activity was permissible provided that you did not identify yourself as a judge in any materials that describe the artist and that the identity of purchasers of your work was withheld from you. You seek a formal opinion from the Committee to supplement that informal advice.

The pertinent provisions of the Code of Judicial Conduct, S.J.C. Rule 3:09, are contained in Canon 5 of the Code, the heading of which states that "A Judge Should Regulate his Extra-Judicial Activities to Minimize the Risk of Conflict with his Judicial Duties."

Canon 5 (A) relative to Avocational Activities provides, in part, that: "A judge may (among other permitted activities) . . . engage in the arts . . . if such avocational activities do not detract from the dignity of his office or interfere with the performance of his judicial duties."

Canon 5 (C) (1) relative to Financial Activities provides that: "A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves."

Canon 5 ( C) (2) provides that: "Subject to the requirements of subsection (1), a judge may . . . engage in other remunerative activity permitted by Canon 4, but should not serve as an officer, director, manager, advisor, or employee of any business."

From the information you provided, the Committee assumes that, in reliance on its informal advice, you are already exhibiting your work for sale, and, as you have been painting for years, you have a portfolio of works created in the past. The Committee also assumes that any works that you have painted since your appointment to the bench, were created by you conformably with Canon 5 (A) as an "Avocational Activity" during your own leisure hours.

The Committee is of the opinion that you may continue to produce works of art for sale and to sell your artwork provided that you are not conducting a "business" as an artist. Whether such an activity would constitute a "business" so as to run afoul of Canon 5 (C) (2) would depend presumably on the scope of the undertaking. You have not indicated the number of paintings you have shown or sold nor what your future output would be, but assuming that you only sell an occasional painting, the Committee believes that you may continue this as an "Avocational Activity" and be compensated for your work.

Consistent with its informal advice, the Committee also suggests that none of the written materials concerning your paintings, (nor the paintings themselves), disclose that you are a judge, and that any gallery, dealer or art association which sells your works withhold from you the identity of any purchasers of your art.

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