You Ought Not To Be In Pictures

The Florida Judicial Ethics Advisory Committee declined to bless a judge’s participation in a documentary film

Issues

1. May a judge appear in a documentary film about high conflict family cases where the judge would speak about trends in high conflict cases in general and also his experiences witnessing the effects on children of high conflict custody disputes.  The judge would not discuss any specific cases pending in any court nor would the judge accept any payment for time or reimbursement of expenses. The documentary film may possibly be shown at a location where tickets are sold, or the film itself could be sold (such as to Netflix) for profit.

ANSWER: No.

2. May a judge allow the filmmaker to film the judge in chambers, or in the judge’s courtroom?

ANSWER: No.

Facts

The inquiring judge has been approached by a documentary filmmaker to appear in a film about the effects on children of high conflict custody cases. After speaking to the filmmaker, it is the judge’s understanding that the intent of the film is to be educational; providing families who are heading into court proceedings an opportunity to learn about the negative effects on children of high conflict disputes. The filmmaker theorizes that by watching this film it would encourage parties to mediate their disputes. 

The filmmaker intends to also include mental health professionals, attorneys, and guardian’s ad litem in his interviews. The filmmaker would like the inquiring judge to speak about trends in high conflict cases in general and the impact of familial conflict on children, however there would be no discussion of any of the inquiring judge’s specific cases pending in any court. The inquiring judge stated that they would eschew any payment for time or any reimbursement of expenses. The filmmaker has told the inquiring judge that the film could possibly be shown at locations where tickets are sold, or the film itself could be sold (such as to Netflix) for profit, however the inquiring judge would not benefit financially from such efforts, but would merely be providing a public service. The filmmaker has told the inquiring judge that the judge has “no connection” to the filmmaker nor does it appear to the presiding judge that the filmmaker has had any case pending in his circuit.

The inquiring judge has also requested an opinion on the advisability of allowing the filmmaker to film the judge in either chambers, the courtroom or should such filming only take place off the courthouse grounds?

Discussion

As noted in JEAC Op 19-02, this Committee has, in the past, dealt with numerous inquiries in which the contemplated conduct involved the judge’s appearance on television or radio programs, or involved speeches, writings or lectures. 

A plethora of opinions issued by this Committee have supported a judge speaking to the public on law and judicial administration related topics for educational purposes, for instance in its opinion JEAC Op. 11-04 this Committee opined:

However, the committee has allowed judges to participate in panel discussions at seminars sponsored by a private organization, so long as the judge’s participation was educational in nature.  Fla. JEAC  Op. 07-09.   Likewise, the committee has consistently held that a judge does not violate the Code by lecturing or writing articles on the law or law related areas.  In Fla. JEAC Op. 06-30, the Committee found no impropriety in the conduct of the judge addressing community groups regarding the dangers of on-line predators.

Furthermore, in Fla. JEAC Op. 07-21, this Committee allowed a judge to write an informative article about the divorce process, so long as the article was educational in nature and did not imply the judge’s endorsement of any products, persons, services or materials.

The caveat to this general position can be found in the seminal opinion given by this Committee found in , wherein:

The inquiring judge wishes to enter into an arrangement with a television station. Under this arrangement he would, for compensation, appear on various segments to ‘comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials such as the O.J. Simpson civil trial.’ He believes that such a news forum would serve to educate the public and explain the procedures and workings of the court system……whether the station may reference his credentials and title, and whether the station may reference his appearance in any pre-news promotional spots or other promotional materials.

In this opinion the Committee found that the proposed arrangement would lend judicial prestige to the commercial interest of that station in violation of Canon 2B. In its rationale, the Committee relied upon Opinion 14-1991 of the South Carolina Advisory Committee on Standards of Conduct, wherein the South Carolina Committee considered the request of a family court judge to participate in a local radio talk show. In addressing the application of Canon 2B, the South Carolina Committee concluded that by associating himself with the radio talk show on a regular basis, the judge would clearly lend the prestige of his office to the advancement of the radio station in an area where the public perceives the judge to be an expert.

Likewise, in the question being considered here, the filmmaker has not implicitly renounced the possibility that the documentary film would be sold for profit or used to earn profits through ticket sales. Because the inquiring judge would be the most prominent authority on high conflict divorces appearing in the film, the chance that his appearance would be used to promote the film in advertisements is highly likely thereby running afoul of the Canons prohibition against lending the prestige of the office to advance the private economic interests of others. See, Fla. JEAC Ops. 07-21; 97-29; 82-01; and 97-16.

When looking to how other Jurisdictions handle this same question, this Committee finds that states are split on this question, for example in the Opinion 11-105 of the Advisory Committee on Judicial Ethics – Judiciary of New York, the committee considered an administrative judge’s request to permit a for-profit video production company to film arraignment proceedings for a documentary, as long as the arraigning judge will merely perform his/her regular judicial duties while being filmed. The committee reasoned that:

the Rules “forbid[ ]a full-time judge from being an active participant in any form of business enterprise organized for profit, which, in this case, would include serving as an advisor” (id. see also; 22 NYCRR 100.4[D][3]; Opinion 08-25 [a full-time judge should not advise a comedian on how to portray a judge on a commercial television show]). For similar reasons, the Committee advised that a full-time judge should not participate in a short interview for an educational video production that is being produced by a commercial television production company for sale to schools and libraries (see Opinion 01-86; see also Opinion 09-182 [a full-time judge should not participate in a videotaped interview to be used as part of a documentary that would accompany a criminal justice textbook, where the video will be produced by a for-profit organization]).

In the California Supreme Court Committee on Judicial Ethics Opinions, CJEO Informal Opinion Summary No. 2014-004 “JUDICIAL APPEARANCE IN AN EDUCATIONAL DOCUMENTARY” the California Committee considered the question of a judge appearing in an educational documentary for public television exploring the work of tribal courts in California and whether the appearance in the film of one or more state court judges (in particular, judges who are members of the Tribal Court-State Court Forum (Forum)) violate canon 2(B)(2) or any other provision of the California Code of Judicial Ethics because the documentary might ultimately generate some downstream pecuniary or other personal benefit to the producer or her production company. The Committee concluded:

that the potential for some downstream pecuniary or other personal benefit to the copyright holder does not constitute a commercial factor that would violate canon 2B(2). The educational content not only predominates, it is the sole purpose of the film. As described, the appearance of the state court Forum judges cannot reasonably be perceived as that of a salesperson for the copyright holder’s product. The clear public benefit to be derived from sparking an interest in the cross jurisdictional legal issues that are to be documented far outweighs any remote possibility of personal or pecuniary gain. Judicial appearance in the documentary film would not lend the prestige of office to a predominately for-profit enterprise and is therefore not prohibited by the canons.

However, the California commission also opined:

The state court judges are permitted under the canons to appear in filmed interviews in which they explain their work with the Forum and tribal courts, including discussing court procedures and legal issues that would promote public understanding and confidence in the administration of justice. However, they must be cautious not to answer questions in such a way that discusses the substance of pending cases, creates the appearance of political bias or prejudgment, or otherwise reveals facts from confidential proceedings.

Similarly, in JEAC Ops. 96-25 this Committee cautioned against a judge appearing on a television station to provide legal commentary because it may involve improper public comment upon a pending or impending proceeding in violation of Canon 3B; also such activity could cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, and interfere with the proper performance of judicial duties in violation of Canon 5.  In this particular inquiry, the proposed interview of the inquiring judge’s anecdotal stories about the detrimental effects of litigation on children falls outside of the permissible topics of law and legal administration and into the area of expertise held by psychologists and mental health professionals. 

This Committee opines that such testimonials by the inquiring judge create two separate issues, firstly, that the inquiring judge would be relating actual stories of children in cases that the judge presided over thereby revealing confidential details of the families in his division which would be readily apparent to those families who viewed the documentary. Secondly, his personal accounts may appear to commit the judge to a particular position, namely that the party responsible for prolonging litigation would be acting against the best interest of their children. Furthermore, giving an opinion on the detrimental effects of litigation on a child’s psyche as opposed to just a law related or administrative question ascribes to the judge an opinion as a child psychologist as opposed to a trier of fact. This in turn would cast reasonable doubt on the judge’s ability to act impartially, thereby eroding public confidence in the impartiality of the judiciary and could lead to the judge’s disqualification on the basis that the judge would inject his personal opinion or has otherwise foreshadowed how they might rule on their pending judicial cases. While this position may seem hyperbolic at first glance, any judge familiar with the highly contentious nature of family court, knows that parties are constantly searching for reasons to disqualify the sitting family court judge who may have ruled against their supposed interests.

In regards to the question of whether a judge allow the filmmaker to film the family court proceedings of the inquiring judge in chambers, or in the judge’s courtroom, the Committee opines that this question should also be answered in the negative for several reasons. Firstly, protecting the process of a fair hearing for parties is imperative, litigating parties and attorneys may be intimidated knowing cameras are present, or worse may posture for the camera. Even if the parties were to consent, the meaningfulness of that consent to the inquiring judge’s asking their permission to record, especially knowing that all matters – custody, equitable distribution, reasonable attorney’s fees etc. being decided by that same judge, calls into question the voluntariness of that consent. Lastly, the children who are the subject of that commentary should be completely shielded from having opinions about their mental health being publicly discussed. 

Consequently, this Committee concludes that for the reasons stated above, the commercial and entertainment aspects of a judicial appearance on documentary movie outweighs the legitimate public information aspects. Ultimately, both questions should be answered in the negative.

(Mike Frisch)