September 12, 2013
Digest: A judge may not use a title for his/her law-related book which suggests that the book is a partisan guide for law enforcement. However, the judge may lecture on legal topics covered in his/her book for audiences that consist primarily or exclusively of law enforcement personnel, provided that the judge does not manifest a predisposition to decide cases in a certain way, does not provide partisan advice on litigation strategy or how better to obtain convictions, and does not discuss the topic in a manner that would compromise the judge’s apparent or actual impartiality.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(H)(1); Opinions 13-06; 12-44; 10-177; 10-153; 09-84; 09-62; 07-29; 06-15; 98-73 (Vol. XVII); 95-121 (Vol. XIII); 93-37 (Vol. XI).
A full-time judge states that he/she has written a book about a topic relevant to criminal justice, focusing on what the courts of specified jurisdiction(s) have decided about the propriety and impropriety of certain actions taken by certain categories of law enforcement personnel. According to the judge, the book is an “objective description of ... decisions in previously decided cases,” rather than a partisan guide to strategy or tactics in the prosecution of criminal cases. The judge notes that the publisher intends to market the work to the general public through a well-known bookseller, as well as to certain law enforcement groups and certain civilian groups that may have a particular interest in these kinds of criminal justice matters.
Given these facts, the judge asks if he/she may use a title for the book that includes the words “Law Enforcement Officers’ ... Field Guide.” The judge also asks if he/she may, at the request of the publisher, lecture to law enforcement audiences “regarding the contents of the book.”1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities, including writing, teaching and lecturing, as long as doing so does 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 and is not incompatible with judicial office (see 22 NYCRR 100.4[A]-; 100.4[B]).
Although the proposed content of the book, as described by the judge, appears to be permissible, the title of the book must also be appropriate. The Committee believes that the proposed title is likely to create the impression that the work is indeed a “field guide” for “law enforcement officers,” as far as the general public is concern..2 Clearly, a judge must strive to avoid not only the reality, but also the appearance, that he/she is aligned in interest with law enforcement (see, e.g., Opinion 10-177 [the court must not accept mail addressed to a prosecutor at the court address, as it “would create an appearance that the court is improperly serving or aligned with prosecutorial interests”]). Here, too, the Committee concludes that the inquiring judge must choose a title for the book that will not give the impression that he/she is giving impermissibly partisan advice on litigation strategy or tactics (see Opinions 95-121 [Vol. XIII] [a judge may not teach police officers how to prosecute cases]; 07-29 [a judge may not provide guidance to local police about how to draft legally sufficient accusatory instruments]; 09-84 [a judge may not give guidance to police about proper courtroom decorum and demeanor when testifying]; 12-44 [a judge may not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors]).
By contrast, the Committee concludes that the judge may lecture at seminars for law enforcement personnel regarding the contents of the book. “The fact that a judge’s intended audience consists of law enforcement personnel does not, in and of itself, render a speaking engagement ethically impermissible” (Opinion 09-62). If an audience is “one-sided,” a judge must ensure that the topic and his/her discussion of it does not suggest that he/she is not impartial or that the judge is predisposed to deciding cases in a particular way (see Opinion 12-44).
As the Committee has previously observed, there are competing principles involved in assessing whether it is permissible for a judge to lecture a “one-sided” audience: “First and foremost, the Rules Governing Judicial Conduct reflect the paramount public interest in maintaining and promoting public confidence in the judiciary’s impartiality and integrity... Nonetheless, as long as the first interest is adequately protected, it may also benefit the public interest when an organization that is involved in litigating only one side of an issue is exposed to the kind of broad and nuanced perspective that a judge can offer” (Opinion 12-44). It is in the public interest that law enforcement personnel be well-educated on legal issues relating to criminal justice.
The Committee has previously advised that, subject to certain limitations, a judge may teach a vehicle and traffic law class to aspiring police officers (see Opinion 98-73 [Vol. XVII]); may provide forensic science and crime scene processing training to a law enforcement agency that regularly appears before the judge (see Opinion 09-62); and may teach a fire police training course (see Opinion 06-15). There thus appears to be no reason to prohibit the lectures described in the present inquiry.
Provided that the judge does not manifest a predisposition to decide cases in a certain way, does not provide partisan advice on litigation strategy or on how better to obtain convictions, or otherwise discuss the topic in a way that would compromise his/her apparent or actual impartiality (see Opinions 12-44; 09-62), the judge may speak to law enforcement personnel regarding the subject matter of his/her book. The judge should, of course, avoid impermissible comment on pending or impending cases (see 22 NYCRR 100.3[B]; Opinion 10-153; cf. Opinion 13-06 [providing guidance on when a case is considered “pending or impending” and on the very limited nature of “minimal and essentially factual commentary on changes in the law” which are “the functional equivalent of head notes”]).
1 Although the judge has not asked about the permissibility of writing and publishing such a book, the Committee has previously advised that a full-time judge may profit from the publication of a manual on criminal procedure (see Opinion 93-37 [Vol. XI]; see also 22 NYCRR 100.4[H]).
2 Only those who delve more deeply into the book’s content will learn otherwise. In all likelihood, the number of individuals who will view the title of the judge’s book will exceed the number of individuals who will carefully read significant portions of the book.