January 23, 1997
Digest: A judge should not write a Foreword to a law book dealing with the workings of the court over which the judge presides and which is a commercial publication intended to earn a profit for the publisher and author.
Rules: 22 NYCRR 100.2(C) Opinions 93-14, Vol. X; 87-13, Vol. I.
An appellate judge has been asked to write a Foreword to a book, the subject of which is the power of the court over which the judge presides. The work is intended as an up-to-date, in-depth study of the relevant constitutional and statutory provisions, the court's rules and their antecedents and the court's own decisions on the subject. Although based on the work of the court, it is not a publication of the court, but is a commercial endeavor presumably intended to earn a profit for the publisher and the author. Under such circumstances, the inquiring judge is particularly concerned that the writing of such a Foreword may be regarded as contravening section 100.2(C) of the Rules Governing Judicial Conduct which states that "A judge shall not lend the presiding of judicial office to advance the private interests of ... others." (22 NYCRR 100.2(C)).
This Committee has previously addressed closely related questions. In Opinion 87-13, Vol. I, for example, the inquiring judge had written a letter to the president of a private research institution praising one of its publications. Thereafter, the judge was asked to give permission for the use of that letter in the advertising of the publication. The Committee expressed the view that the judge should not give such permission, concluding that to do so would violate the prohibition against lending the prestige of judicial office to advance the private interests of others.
Similarly, in Opinion 93-14, Vol. X, the inquiring judge had been asked by the publisher to review a soon-to-be-published book involving legal issues, the purpose of which was to enable the publisher to quote the judge on the book jacket. Citing Opinion 87-13, Vol. I, the Committee held that the writing of the review for the purpose of providing a book jacket quote to be used in conjunction with the sale of the book would be improper. However, the Committee went on to state that the writing of a book review for publication is permissible, since it is not for the purpose of advancing the private interests of a particular person but, rather, is an aspect of a range of permissible extra-judicial activities, i.e., speaking, writing, teaching and participating in activities concerning the law, the legal system and the administration of justice.
Applying such a distinction to the instant inquiry, the Committee is of the opinion that the writing of the Foreword, as requested by the author, falls within the category of advancing the private interests of others and is therefore proscribed by section 100.2(C) of the Rules Governing Judicial Conduct. As with the book jacket quotation, there is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author. For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval. Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.
Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer. In the opinion of the Committee, it readily follows, under such circumstances, that the judge should not lend the prestige of that office to advancing the interests of the publisher and author, and therefore should not write a Foreword to the book.