October 28, 2004
Digest: A judge may co-author an article with a practicing attorney who also is the judge’s spouse, but should limit the content of the article to a review of applicable statutes and cases as opposed to litigation strategies, to avoid any appearance of partiality.
Rules: 22 NYCRR 100.2(A); 100.3(E)(1); 100.4(A); Opinion 95-145 (Vol. XIII).
A judge asks whether it is ethically permissible for the judge to co-author an article with a practicing attorney who also is the judge’s spouse. The article would address a particular area of practice of professional and personal interest to the judge and the judge’s spouse.
A judge may engage in extra-judicial activities, including writing scholarly articles, so long as they do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or, (3) interfere with the proper performance of judicial duties. 22 NYCRR 100.4(A). In Opinion 95-145 (Vol. XIII), this Committee concluded that a Supreme Court justice may co-author a law book with an attorney and may profit from the book’s publication. In the present inquiry, the fact that the attorney is also the judge’s spouse does not dictate a different result.
The inquiring judge proposes an article that would offer a practical approach to cases in the area of law that is of particular interest to the judge and the judge’s spouse, by discussing litigation and strategies. As an alternative, however, the judge poses the possibility of writing a scholarly article reviewing the applicable statutes and recent cases in this area of the law. It is the Committee’s view that, to avoid any appearance of a predisposition to decide these types of cases in a particular way, and to avoid commenting on any pending or impending cases, the judge should limit his/her writing to a scholarly article reviewing applicable statutes and recent cases. The latter approach would eliminate any risk that the judge’s impartiality may appear compromised in a category of cases over which the judge may preside. 22 NYCRR 100.2(A); 100.3(E)(1).