January 25, 2001
A judge should not (1) write articles for a magazine in which the judge
would be commenting on cases involving the Internet, where such matters
may involve pending or impending proceedings; (2) identify himself or herself
as a "real estate broker" in order to obtain access to houses for sale
listed on an Internet site.
22 NYCRR 100.1; 100.3(B)(8);
Opinion 95-100 (Vol. XIII).
A judge asks two separate questions. First, the judge states that he/she
has been asked by his/her brother to contribute an article to a magazine
that the brother edits. As stated by the judge:
He has asked that I write about my views on the impact of the internet and the laws of many nations governing same on Hi Tech business operations throughout the world. For example, a French court has ordered Yahoo to block parts of its site to French users. Do they have authority? Would an American court? New Zealand?
Articles such as this would appear monthly. The judge asks whether payment may be accepted for such articles.
In the view of the Committee, the question of payment is irrelevant. The judge should not write the kind of articles described in the inquiry. To begin with, "[a] judge shall not make any public comment about a pending or impending proceeding in any court within the United States or its territories." 22 NYCRR 100.3(B)(8). Presumably, the judge contemplates passing judgment on the effect of foreign court rulings in possible American court proceedings. This would constitute public comment on an impending proceeding and is therefore impermissible. This does not mean that the judge could not write about American law involving the Internet in general. But it does mean that the judge should not seek to apply such law to the facts presented in cases of the kind mentioned.
The judge's second inquiry involves identifying himself or herself as a "real estate broker" in order to obtain access to homes for sale listed on an Internet site. (The judge is seeking a residence for him/herself and children.) Apparently, in order "to actually view the property you are required to call a Real Estate Broker thereby adding commissions to the deal immediately." The judge would like to avoid having to pay such a commission.
In the opinion of the Committee it would be improper for the judge to make such a representation. While it may be that a lawyer may act as a real estate broker (the judge, who is a full-time judge has been licensed to practice law) it is entirely inappropriate for the judge to characterize him/herself in that fashion. The judge is not a real estate broker. Indeed, in Opinion 95-100 (Vol. XIII), the Committee stated that a full-time judge may not apply for a real estate broker license under any circumstances. Moreover, the judge's self-representation in a possible transaction (andself-interest) do not render permissible a characterization that is patently misleading. 22 NYCRR 100.1.