Opinion 25-193

December 18, 2025

Digest:  (1) A judge may write and edit a chapter in a legal treatise and be identified as the author by name and title.  (2) The judge may request and accept assistance from his/her former law firm to aid the judge in research and drafting, but must thereafter disqualify from matters involving his/her former law firm for two years after conclusion of the project.  This disqualification is subject to remittal, if practicable in the judge’s court.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(A); 100.3(B)(8); 100.3(E)(1); 100.3(F); 100.4(A)(1)-(3); 100.4(B); Opinions 25-120; 23-107; 21-61; 21-22(A); 15-38; 14-159; 13-89; 13-06; 06-105; 03-65.

Opinion:

          The inquiring judge has been asked to revise a chapter in a legal treatise.  The chapter was originally drafted, and subsequently revised, by the judge’s predecessors in the court.  The treatise is published by a commercial publisher “in cooperation with” a bar association.  The judge, like other contributors, will not be compensated for his/her contributions. The judge asks if he/she may (1) revise the chapter “and receive authorship credit in [his/her] official capacity”; and (2) request and accept “research and drafting assistance, on a pro bono basis” from the judge’s former law firm, from which the judge is already required to disqualify in all matters.

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 judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]), but a judge may nonetheless speak, write, lecture, and teach, subject to generally applicable limitations (see 22 NYCRR 100.4[B]; 100.4[A][1]-[3]).  For example, a judge must not make any public comment about a pending or impending proceeding in any court within the United States or its territories (see 22 NYCRR 100.3[B][8]).

          Notwithstanding the involvement of a commercial publisher, a full-time judge may write on matters concerning the law, the legal system and the administration of justice (see e.g. Opinions 21-61 [judge may contribute case vignettes and legal commentary to a case book on mental capacity]; 13-06 [court attorney referee may write and edit pocket part update]; 03-65 [judge may contribute to a monthly update service that reports recent Appellate Division decisions]).  With respect to application of the public comment rule, as we noted in Opinion 13-06 (citations and footnote omitted):

the nature of the inquirer’s work on the pocket part updates is such that the inquirer will need to describe cases which are still “pending or impending” within the meaning of the Rules, if a matter has not been finally resolved and the time for appeal has not yet been exhausted. The Committee believes that minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise - indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them.

          Here, too, we conclude that the inquiring judge may write and edit a chapter in a legal treatise, provided the judge does “not attempt to resolve ambiguities or otherwise interpret the cases, or express subjective praise or criticism of them” (Opinion 13-06).  As the author of such chapter, the judge may be identified by name and title in his/her official capacity as a judge (see e.g. Opinions 13-89; 06-105).

          As for requesting research and drafting assistance from the judge’s former law firm, we note that this legal treatise is published in cooperation with a bar association, and is apparently intended to promote the law, the legal system and the administration of justice in New York.  Indeed, the judge was specifically invited to participate in this chapter in his/her official capacity, based on his/her role in the Unified Court System.  On these facts, we see no appearance of impropriety in using court resources in preparing the chapter, provided it does not interfere with proper performance of judicial duties (see Opinions 25-120; 14-159; 22 NYCRR 100.3[A]).  Given that judges and lawyers routinely volunteer and collaborate on bar association matters to benefit the legal profession, we likewise see no appearance of impropriety in the judge requesting and accepting the law firm’s pro bono assistance on this project.

          Finally, although the judge says he/she is already recusing from all matters involving his/her former law firm, for completeness we note that the proposed project here would in any event extend the judge’s disqualification period for this firm.  That is, we conclude that the judge’s proposed collaboration with his/her former law firm on the book chapter is likely to create an impression of an ongoing close professional relationship between them, which might cause the judge’s impartiality to be reasonably questioned in light of their strong pre-existing financial and professional relationship (see 22 NYCRR 100.3[E][1]).  Accordingly, during this particular project and for two years thereafter, the judge must disqualify him/herself from all matters involving his/her former law firm.  The disqualification may be remitted after full disclosure on the record of the basis for disqualification and the voluntary, affirmative consent of all parties and (if represented) their counsel (see Opinion 21-22[A]; 22 NYCRR 100.3[F]).  If the judge is “unwilling or unable” to make full disclosure on the record, or if remittal is otherwise impracticable in the judge’s court, the judge must simply disqualify (see e.g. Opinions 23-107; 15-38).