January 26, 2012
Digest: A part-time judge may personally market a software product that includes course materials the judge develops for continuing legal education programs to attorneys or law firm staff, provided that the judge does not exploit his/her judicial position in marketing the product. Absent other factors, the judge is not disqualified from presiding over matters involving law firms that have purchased the judge’s software product unless the judge doubts his/her ability to remain impartial.
Rules: Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(a)-(e); 100.4(D)(1)(a)-(c); 100.4(D)(3); 100.6(B)(4); Opinions 11-64; 10-160; 10-95; 10-84; 07-79; Joint Opinion 07-78/07-121; People v Moreno, 70 NY2d 403 (1987).
A part-time judge who is permitted to practice law plans to write course materials, including proprietary forms, for continuing legal education programs. The areas of the law that are the subject of the course materials are not included in the jurisdiction of the court where the judge presides. The judge would like to include these materials “in a software product which will be offered for sale to paralegals, secretaries and attorneys state-wide.” The judge states that he/she will “receiv[e] a percentage of sales” and asks whether he/she may personally market the product to attorneys or law firm staff at a continuing legal education program, or by e-mail, telephone, or letter after the program. The judge further asks whether he/she may preside over matters in which a law firm that has purchased the judge’s product appears.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not engage in financial and business dealings that may reasonably be perceived to exploit the judge's judicial position; involve the judge with any business, organization or activity that ordinarily will come before the judge; or 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]; cf. 22 NYCRR 100.2[C] [a judge must not lend the prestige of judicial office to advance the private interests of the judge or others]). Although a full-time judge is prohibited from serving as an active participant of any business entity (see 22 NYCRR 100.4[D]), a part-time judge is not subject to this prohibition, and may engage in private employment that is not incompatible with judicial office and does not conflict or interfere with the proper performance of the judge’s duties (see 22 NYCRR 100.6[B]).
Nevertheless, a judge’s judicial duties take precedence over all other activities (see 22 NYCRR 100.3[A]). A judge must disqualify him/herself from any proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][a]-[e]; Judiciary Law §14).
The Committee has previously advised that a full-time judge may offer an online software tool and online legal commentaries for sale to the public (see Opinion 10-95), although he/she must refrain from direct involvement with marketing, sales, billing, collections and accounting practices (see id.; see also 22 NYCRR 100.4[D]).
Here, too, the Committee concludes that the inquiring judge may offer a software product containing legal materials written or created by the judge for sale to the public (see Opinion 10-95). Because inquiring judge is part-time, the Committee further concludes that he/she may personally market the software product to attorneys or law firm staff (cf. Opinion 07-79 [prohibition on serving as “an ‘active participant’ in a ‘business entity’ ... does not, however, apply to part-time judges”]). In marketing the software product, the judge is not required to hide his/her identity as a judge, but must refrain from using that identity to further his/her personal interests (see Opinion 10-84; see also 22 NYCRR 100.2[C] [judge must not lend the prestige of judicial office to advance the private interests of the judge or others]; 100.4[D][a] [judge must not engage in financial or business dealings that may reasonably be perceived to exploit the judge's judicial position]).
In the Committee’s view, because the judge’s software product pertains to areas of the law that are not within the jurisdiction of the judge’s court, and because the product will apparently be sold in connection with a particular continuing legal education course, the judge’s activities surrounding the sale of his/her particular software product would not necessarily result in frequent transactions or continuing business relationships between the judge and the lawyers who appear before the judge (see 22 NYCRR 100.4[D][c]), and would not necessarily involve the judge with any business, organization or activity that ordinarily will come before the judge (see 22 NYCRR 100.4[D][b]).
For similar reasons, the Committee also concludes that, absent other disqualifying factors, the judge’s impartiality cannot reasonably be questioned merely because a law firm has purchased a software product containing the judge’s legal education course materials (see 22 NYCRR 100.3[E]; Opinion 10-160 [noting that in most cases, a one-time, arms-length business transaction between a part-time judge and an attorney who appears in the judge’s court would not cause the judge’s impartiality to reasonably be questioned]). Consequently, the judge need not disqualify him/herself from matters involving law firms that have purchased the judge’s software product unless the judge doubts his/her ability to remain impartial (see generally Opinion 11-64).1
1Opinion 11-64 explains that “where disqualification is not mandated pursuant to the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E]) or Judiciary Law §14, the judge ‘is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court’ (People v Moreno, 70 NY2d 403, 405 ). Of course, if the judge questions his/her own ability to be impartial in a particular matter, then he/she must not preside (see 22 NYCRR 100.3[E][a][i]; Joint Opinion 07-78/07-121).”