June 9, 2005
Digest: On the facts presented, a judge may write a law review article which addresses the powers of the office of Governor of the State of New York.
Rules: 22 NYCRR; 100.3(B)(8); 100.4(A). Opinions 04-115; 95-145 (Vol. XIII); Joint Opinion 90-123/90-133 (Vol. VI).
A judge asks whether it is ethically permissible to write a law review article dealing with the evolving and expanding powers of the office of Governor of the State of New York. The article cites and addresses recent appellate decisions all of which have been finally determined by the Court of Appeals; and there are no related cases now pending.
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). Further, a judge should avoid public comment on a pending case. 22 NYCRR 100.3(B)(8). See, e.g. Opinions 04-115; 95-145 (Vol. XIII); Joint Opinion 90-123/90-133 (Vol. VI).
None of these limitations appears to be at issue in the matter before the Committee. Thus, in the opinion of the Committee, there is no ethical barrier to publishing the article. The article does not express opinions about pending cases in any court, nor does it present the subject in a way “that would indicate the judge has a predisposition with respect to deciding particular cases . . . ” Joint Opinion 90-123/90-133 (Vol. VI). Further, the article is “consistent with the dignity and integrity of the judicial office” held by the inquirer. Joint Opinion 90-123/133 (Vol. VI). We therefore conclude that the judge may submit the article for publication in a law review.