June 10, 2010
Digest: A non-judge candidate for judicial office may continue to offer an online software tool and online legal commentaries for sale to the public during the course of his/her campaign and, if his/her campaign is successful, after assuming the bench. However, as a full-time judge, he/she must refrain from direct involvement with marketing, sales, billing, collections and accounting practices.
Rule: 22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(1)(a)-(C); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(1)(c)(1); 100.5; 100.5(A)(4)(a); 100.6(A); part 1200 Rule 8.2(b); Joint Opinion 09-192/09-213; Opinions 09-08; 07-90; 07-37; 06-105; 05-149; 02-133; 98-89 (Vol. XVII); Joint Opinion 96-143/97-43/97-58/97-66/97-96 (Vol. XV); Opinion 90-24 (Vol. V).
A candidate for judicial asks whether he/she may, as a judicial candidate, and if elected, as a full-time judge, continue to develop, maintain and receive income from an online service which provides “commentary on new Penal Law legislation, as well as automated analyses of charges, elements, plea bargaining restrictions and sentencing parameters under New York law.” The service is currently available to paying subscribers, many of whom are “New York courts, judges, law clerks or court librarians.” The remaining subscribers are private attorneys, prosecutors, public defenders, and probation officers. Specifically, the inquirer asks whether he/she may continue to offer this service for sale to the public if he/she “retain[s] responsibility only for the content of the site itself” and hires an independent contractor to assume responsibility for “marketing, customer list maintenance, subscriptions, user names and passwords, billing, collection, and deposit of funds.” In addition, the inquirer would like to continue to provide free access to the service for any would-be subscriber in the county where the inquirer would preside if elected as a judge, i.e., anyone who “resides or works in ... or has any matter or appears before any court” in the inquirer’s county.
A judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2) and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge must conduct all of the judge’s extra-judicial activities so that they are not incompatible with judicial office and 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 (see 22 NYCRR 100.4[A]-). The Rules Governing Judicial Conduct (Rules) specifically authorize judges to engage in avocational activities such as writing, subject to the other provisions of the Rules (see 22 NYCRR 100.4[B]). A judge may receive compensation for such activities, as long as the source of the compensation does not give the appearance of influencing the judge’s performance of judicial duties or otherwise create an appearance of impropriety (see 22 NYCRR 100.4[H]) and the compensation does not exceed a reasonable amount or what a person who is not a judge would receive for the same activity (see 22 NYCRR 100.4[H][a]). In addition, a full-time judge may not solicit or accept compensation for extra-judicial activities “performed for or on behalf of ... New York State, its political subdivisions or any office or agency thereof” (22 NYCRR 100.4[H][c]).
With respect to financial activities, a judge is specifically prohibited from engaging in financial and business dealings that (a) may reasonably be perceived as exploiting the judge’s judicial position; (b) involve the judge with any business, organization or activity that ordinarily will come before the judge; or (c) involve the judge in frequent transactions or continuing business relationships with those lawyers or other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][a]-[c]). Finally, a full-time judge also is prohibited from being an “active participant of any business entity” (see 22 NYCRR 100.4[D]).
The Committee previously has advised that a judge “may write articles on the law, may teach law, and may write books on the law” (Opinion 90-24 [Vol. V]; see also Joint Opinion 09-192/09-213 [citing prior opinions]; Opinion 07-37 [describing generally applicable restrictions on judicial speech, including the prohibitions against making any comment about a pending or impending case and giving partisan advice on strategy, and avoiding the perception of partiality or a predisposition to decide matters in a particular way]; see also 22 NYCRR 100.4[B] and 100.3[B]). The Committee also has advised that judges may have their written works published and sold by a for-profit publishing company as that activity is generally only available in commercial settings1 and may be compensated for their efforts (see Opinion 09-08 [judge may prepare a book of the judge’s photographs and “publish it commercially or through self-publication”]; Joint Opinion 96-143/97-43/97-58/97-66/97-96 [Vol. XV] [noting that “when the judge writes commentaries for a for-profit publishing company – an activity which this opinion allows – that activity is generally only available in commercial settings”]). Therefore, it is the Committee’s view that a judge also may publish legal commentary and analysis through an online software tool.
The Committee believes that a judge’s development of software in conjunction with writing and publishing associated materials and commentaries on the law for sale to the public does not, without more, make the judge an “active participant” in a business entity (22 NYCRR 100.4[D]). Rather, to rise to the level of an active participant, the judge’s involvement in the publication of his/her software and legal commentary and analysis would have to also include direct involvement with marketing, sales, billing, collections or accounting practices (see Opinion 05-149; Joint Opinion 96-143/97-43/97-58/ 97-66/97-96 [Vol. XV]).
The Committee therefore concludes that a full-time judge may develop, publish and accept compensation for an online software tool that offers legal commentary and analysis, but must refrain from direct involvement with marketing, sales, billing, collections and accounting practices. While the judge need not hide his/her identity as a judge (see Opinions 06-105; 98-89 [Vol. XVII] [judge may permit use of the title “judge” before the judge’s name and use of a photograph of the judge in judicial robes in connection with a law book written by the judge]), the judge may not exploit his/her judicial position, title and role in the promotion of his/her online software tool(see Opinion 02-133; see also 22 NYCRR 100.2[C] [judge shall not lend the prestige of judicial office to advance the private interests of the judge or others] and 100.4[D][a] [judge may not engage in financial and business dealings that may reasonably be perceived as exploiting the judge’s judicial position]).
The inquirer also asks whether he/she may, through a third party, continue to provide free access to the service to any person who “resides or works in ... or has any matter or appears before any court in” the inquirer’s county. The Committee believes this policy is an acceptable way for a judge to minimize the risk that he/she will be engaged in financial dealings with lawyers or other persons likely to come before the court on which the judge serves (see 22 NYCRR 100.4[D][c]; 100.4[H] [source of judge’s extra-judicial compensation must not create an appearance of impropriety]).
With respect to the inquirer’s responsibilities as a judicial candidate, the Committee concludes that the above limitations of Section 100.4 do not, by their terms, apply to a non-judge candidate for elective judicial office. A non-judge candidate for judicial office must, among other things, act in a manner consistent with the impartiality, integrity and independence of the judiciary during his/her campaign (see 22 NYCRR 100.5[A][a]).2 But the more specific provisions of Section 100.4 do not apply to a non-judge until he/she assumes judicial office (see Opinion 07-90 [declining to apply a provision of Section 100.4 to a non-judge candidate]; 22 NYCRR 100.6[A] [judicial candidates must comply with the provisions that “by their terms . . . apply” to them]; see also 22 NYCRR part 1200, Rule 8.2[b]). Accordingly, a non-judge judicial candidate may, but is not required to, insulate him/herself from the marketing, sales, billing, collections and accounting practices involved in publishing his/her works in anticipation of his/her hoped-for election as judge.
1 The Committee notes that with the advent of the internet individuals can readily publish their own written materials without the services of a commercial publisher.
2 Non-judge candidates for elective judicial office must comply with 22 NYCRR 100.5. Certain definitions in Section 100.0 may also apply (see e.g. 22 NYCRR 100.0[A] [“candidate”] and 100.0[Q] [“window period”]).