October 24, 2019
Digest: A full-time judge who has written a law book may permit his/her volunteer assistant to reach out to a relative’s contact at a newspaper for the legal community to ask if they would be interested in reviewing or mentioning the judge’s book.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(1)(a); 100.4(D)(3); 100.4(H)(1); Opinions 16-06; 15-182; 15-162; 06-105; 05-28; 99-145; 98-89; 97-01; 95-145; 94-68.
A full-time judge has written a new edition of his/her legal text with the aid of a volunteer research assistant whose spouse works for a legal publishing company. The assistant offered to ask his/her spouse for a contact at a trade newspaper for the legal community to inquire whether the newspaper would “be interested in doing a book review/mention” of the judge’s book.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge’s extra-judicial activities, including avocational activities such as writing, must be compatible with 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]-; 100.4[B]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]) or engage in financial and business dealings that “may reasonably be perceived to exploit the judge’s judicial position” (22 NYCRR 100.4[D][a]). A full-time judge may not serve as an “active participant of any business entity” (see 22 NYCRR 100.4[D]) but may accept compensation for permissible extra-judicial activities as permitted by the Rules (see 22 NYCRR 100.4[H]).
A full-time judge may write a book and profit from its publication, notwithstanding the involvement of a commercial publisher (see e.g. Opinions 15-162; 95-145; 99-145). Although a judge may not permit his/her judicial position to be “exploited” in promoting his/her book, the judge need not conceal his/her identity as a judge (see Opinion 06-105). Indeed, a judge may permit the use of his/her name, judicial title and photograph on the book’s back cover (see Opinions 16-06; 15-182; 06-105; 98-89; cf. Opinion 94-68 [judge may permit the use of his or her name or photograph in the advertising and promotion of the judge’s contribution to a legal publication provided that such material is restricted to the judge’s contribution]).1 Moreover, a judge may generally publicize his/her book and participate in book signing and other promotional events a publisher organizes, especially where the text relates to the law, the legal system or the administration of justice (see Opinions 15-182; 16-06 [noting restrictions in specifically targeting attorneys, where the text is unrelated to the law]).
Clearly, a legal newspaper’s review or mention of the judge’s law book could potentially influence book sales. We believe it would be permissible for a judge to send a copy of his/her book to a newspaper with a request to review or mention it, provided the judge does not impermissibly use court resources for this purpose. (For example, if the judge mails his/her book to the publisher, we assume he/she will use personal funds to pay for the postage.) Similarly, any third-person outreach should not come from litigants, attorneys known to appear before the judge, or court staff. But such limitations do not preclude use of contacts arising through the judge’s personal network.
Accordingly, this judge may permit his/her volunteer assistant to reach out to a relative’s contact at a legal newspaper to ask if the newspaper would be interested in reviewing or mentioning the judge’s book.
1 By contrast, a judge may not write a foreword to a book written by another author (see Opinion 97-01) nor permit an author or publisher to use any portion of a book review written by the judge to promote the sale of a book written by another author (see Opinion 05-28), as such activities could be seen as lending the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).