October 19, 2006
Digest: A judge who is seeking an advanced degree may submit scholarly writings for academic credit, but he/she must avoid commenting on pending or impending cases or indicating how he/she would decide any particular case or class of cases.
Rules: 22 NYCRR 100.3(B)(8); 100.4(A), (B); Opinions 06-06; 05-70; 04-115; 99-145 (Vol. XVIII).
A judge, seeking an advanced degree at a foreign university, forwards to this Committee a draft of a paper he/she plans to submit to the university for academic credit. The judge inquires about the propriety of the contents of the document.
The Rules Governing Judicial Conduct permit judges to engage in extra-judicial activities, including writing, provided that these activities 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; 3) interfere with the proper performance of judicial duties; and 4) are not incompatible with judicial office. 22 NYCRR 100.4(A), (B); Opinion 06-06.
This Committee previously concluded that a judge may write about a variety of topics and in a variety of contexts, including composing an article that is co-authored with an attorney and addresses a particular area of legal practice; preparing a law review article addressing the powers of the office of Governor of the State of New York; writing works of fiction; and authoring a book about the community in which the judge resides. The Committee has cautioned, however, that a judge must also avoid commenting on pending or impending cases, or indicating how he/she would decide any particular case or class of cases. 22 NYCRR 100.3(B)(8); 100.4(A), (B); Opinions 06-06; 05-70; 04-115; 99-145 (Vol. XVIII).
The Rules do not distinguish between writing for general publication and writing for academic advancement, and in this instance the Committee does not see any reason to find such a distinction. The judge may therefore submit scholarly writings for academic credit, but should observe the same limitations articulated herein which apply to writings intended for publication.