October 22, 2015
Digest: Provided the enumerated extra–judicial activities do not interfere with the judge’s regular judicial duties, a full-time judge who has written and published a book may (1) appear throughout the United States to promote his/her book, (2) conduct book signings and speak at bookstores, law schools, and bar associations in New York and elsewhere, and (3) permit copies of the book to be available for purchase at such events. The judge may engage in any such permissible activities in another state or country subject to the laws, rules and regulations for such activities in the subject jurisdiction. Although the judge may permit a commercial television producer to make a television series based on the judge’s book for a commercial television station, the judge may not serve as a host for the series or be interviewed for the series.
Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(9)(b); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); Opinions 15-162; 15-109; 15-30; 14-23; 13-89; 13-06; 10-95; 10-84; 08-25; 06-105; 05-149; 02-72; 02-09; 00-79; 98-89; 95-94; 94-116; 93-133; 92-123; 89-146; 88-134; 88-106.
A full-time judge has written a book about a particular area of law, drawing on his/her prior judicial experiences in a court where he/she presided in that area of law. The book includes recommendations about “new ways to deal with” the area of law and discusses certain cases which are fully completed and no longer pending or impending in any court. Where the press has not previously covered the cases, the judge has “changed the names and background to protect the victims.” The judge’s book has been accepted for publication, and a commercial television producer has also expressed interest in creating a television series based on the book, to be aired on a commercial television station. The judge notes that he/she has extensive experience speaking to the media, civic groups, law schools, and bar associations about the topics covered in the book. The judge asks several questions:
1. May the judge make appearances throughout the country to promote his/her book, “as long as it does not interfere with” the judge’s judicial duties?
2. May the judge conduct book signings and/or lectures at (a) bookstores in New York and elsewhere and (b) bar associations and law schools in New York?
3. May the judge “have books available for sale at such events”?
4. If some or all of the above-referenced promotional activities are not permitted in New York, may the judge engage in such activities in another state or another country?
5. May the judge serve as host for the proposed television series?
6. If not, may the judge be interviewed for the television series about issues relating to the area of law discussed in the book? The judge states that he/she would not be compensated for the interview(s) and would not comment on any pending cases.
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’s extra-judicial activities must not interfere with his/her judicial office and must 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 specifically authorize judges to engage in avocational activities such as speaking, writing, lecturing, teaching and participating in the undertakings of organizations devoted to the law, the legal system or the administration of justice, subject to other provisions of the Rules (see 22 NYCRR 100.4[B]; 100.4[C]; see generally Opinion 02-72). For example, a judge may not publicly comment on “a pending or impending proceeding in any court within the United States or its territories” (see 22 NYCRR 100.3[B]), and a full-time judge must not serve as “an officer, director, manager, general partner, advisor, employee or other active participant of any business entity” unless a specific exception applies (22 NYCRR 100.4[D]). Subject to certain limitations, a full-time judge may nonetheless receive compensation for engaging in permissible extra-judicial activities if the source of the payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety (see 22 NYCRR 100.4[H]).
Book Tour (Questions 1-4).
The Committee has advised that, subject to all applicable provisions of the Rules, a full-time judge may publish a book on a particular topic and accept revenues and royalties from the sales (see Opinions 15-162; 14-23; 13-06; 10-84).1 The Committee has also advised that a judge may permit the use of his/her photograph, taken while wearing a judicial robe, in advertisements and promotions for a law book the judge authored, including on the back cover of the judge’s book (see Opinions 13-89; 98-89). Moreover, a judge who is an author may participate in traditional book-signing events and public discussions of the book and may state that he/she is a judge in response to questions posed by attendees at such events (see Opinion 06-105). The judge must nonetheless abide by all applicable restrictions on judicial speech and conduct. For example, the judge must not comment on pending or impending cases and must not indicate that he/she is predisposed to decide a particular class of cases in a particular way (see e.g. Opinions 13-06; 06-105; 22 NYCRR 100.3[B]; 100.3[B][b]; see also Opinion 15-30 [reviewing prior opinions and noting that a matter remains “pending or impending,” even after the original trial is complete, as long as any appeal or collateral proceeding in the case is pending or likely]).
The Committee therefore concludes that the inquiring judge may appear throughout the United States to promote his/her book, attend and participate in book signing events, and speak at bookstores, law schools, and bar associations in New York, and have copies of the book available for purchase at such events.2 Indeed, since it is permissible for the judge to engage in these activities in New York, it is equally acceptable for the judge to pursue them in other states and countries subject to the laws, rules and regulations of the subject jurisdiction regarding such activities (cf. 22 NYCRR 100.2[A] [a judge must respect and comply with the law]).3
Television Series (Questions 5-6).
With respect to the proposed television series, the Committee believes that, just as a full-time judge may permit his/her book to be published by a commercial publishing company, the judge may also permit his/her book to be made into a commercial television series. However, the inquiring judge further asks whether he/she may personally participate in the television series, either by serving as host or by being interviewed for the series.
Section 100.4(D)(3) forbids a full-time judge from being an active participant in any form of business enterprise organized for profit. Thus, the Committee has advised that a full-time judge may not serve in an advisory capacity on a commercial television show, even if the judge will not be compensated for his/her efforts and will not appear or be credited on the program (see Opinion 08-25; see also Opinion 94-116 [a full-time judge must not participate in a television production intended to result in a commercial television series based upon the judge’s judicial experiences and life]).
By contrast, the Committee has advised that a judge may host a regularly scheduled television show about the law, including court procedures (see Opinions 02-72; 89-146), appear on a television talk show to discuss legal matters (see Opinion 88-106), appear as a moderator on a television public service program concerning legal matters (see Opinion 00-79), or host a television talk show on a local noncommercial public access station (see Opinion 95-94 [noting that the judge may identify him/herself on the show by his/her judicial position]), provided the judge complies with all applicable rules governing judicial speech and conduct (see e.g. 22 NYCRR 100.3[B] [judge must not publicly comment on any pending or impending case in the United States or its territories]).
Here, the proposed commercial television series will be based on the inquiring judge’s personal experiences, issues and events discussed in the judge’s book. Significantly, the proposed series is neither a traditional news program or talk show nor primarily an educational or public service program; instead, it would be developed by a for-profit television producer and shown on a for-profit television station. Under these circumstances, the judge must not participate as host, advisor, or interviewee for the proposed television series, even if the judge would not be compensated for such activities (see Opinions 08-25; 94-116; 22 NYCRR 100.4[D]).
1 If the compensation exceeds $150, a full-time judge must report it as provided by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H][a]; 100.4[H]).
2 The Committee notes that the inquiring full-time judge has asked only if he/she may “have books available for sale” at his/her book signing or lecture events, and has not asked whether he/she may personally sell and market the book. In light of the restrictions on a full-time judge’s business activities (see 22 NYCRR 100.4[D]), the prior opinions in this area can be heavily fact-specific (see e.g. Opinions 15-162; 14-23; 10-95; 05-149), and judges are encouraged to write in for further guidance on their own particular circumstances.
3 Where the Rules “do not, on their face, contain any geographical limitation,” the Committee has advised that such provisions continue apply to a judge’s conduct outside New York State (Opinion 15-109; see also e.g. Opinions 02-09; 93-133; 92-123; 88-134).