Opinion 21-61

April 29, 2021

Please Note: See AO-347 concerning the status of Section 100.4(H)(2).

Digest:        A full-time judge (1) may contribute case vignettes and legal commentary to a for-profit casebook on mental capacity, provided the vignettes do not disclose parties’ names and the commentary is consistent with the public comment rule and other limitations, but (2) may not recommend others to contribute to the casebook.

Rules:         22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1)(a); 100.4(H)(2); 100.4(I); part 40; Opinions 13-06; 03-69; 03-65; 97-01; 96-143/97-43/97-58/97-66/97-96; 90-24.

Opinion:

         In a prior judicial assignment, the inquiring full-time judge had appointed a certain psychologist as a court evaluator in guardianship proceedings. The judge now presides in other types of cases, and no longer makes Part 36 appointments.¹ The psychologist is writing a casebook on mental capacity and has asked the judge to contribute case vignettes and legal commentary for it. The judge would receive a complimentary copy of the book and would be credited (along with other contributors) for their submission but would not receive any financial compensation. The judge asks if it is ethically permissible to: (1) contribute commentary and case vignettes to the book, based on specific cases “if the identities of the parties involved in the case are not disclosed” and (2) recommend the judge’s personal law clerk, other attorneys, and/or another judge to contribute commentary and case vignettes. We understand the casebook is a for-profit, commercial publication.

         A judge must 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 may engage in permissible extra-judicial activities, including writing, subject to generally applicable limitations on judicial speech and conduct (see 22 NYCRR 100.4[B]). For example, a judge must not make any public comment on a pending or impending proceeding in any court in the United States or its territories (see 22 NYCRR 100.3[B][8]). Moreover, any extra-judicial activities must be compatible with judicial office and must not (1) cast doubt on the judge’s capacity to act impartially as a judge, (2) detract from the dignity of judicial office, or interfere with proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). A judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). While a full-time judge may not serve as an officer, director, or other “active participant of any business entity” (22 NYCRR 100.4[D][3]), they may accept reasonable compensation for permissible extra-judicial activities in certain circumstances (see 22 NYCRR 100.4[H][1][a]), subject to reporting requirements where applicable (see 22 NYCRR 100.4[H][2] [$150 threshold]; 100.4[I]; part 40).

1. Judge as Author: Contributing Case Vignettes and Legal Commentary

         A judge may contribute to a monthly update service that reports recent Appellate Division decisions on matrimonial law (see Opinion 03-65); contract with a commercial publishing company to write on legal matters, including writing civil practice commentaries for a publication dealing with New York civil practice (see Opinion 96-143/97-43/97-58/97-66/97-96); and write commentaries on criminal law for a legal publisher (see Opinion 90-24). All these are permissible for a full-time judge, notwithstanding the involvement of a commercial publisher.

         We believe that the judge’s proposed contribution of case vignettes and legal commentary to a for-profit casebook is analogous to writing and editing a pocket part for a for-profit legal publication, which we addressed in Opinion 13-06. As we noted (id. [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 judge may contribute similarly limited legal commentaries, which do not attempt to resolve ambiguities or otherwise interpret the cases, or express subjective praise or criticism of them (id.). The judge may also contribute case vignettes based on actual cases, without disclosing the parties’ names.

2. Judge Recruiting or Referring Other Contributors

         We have advised that a full-time judge may not serve as consultant, advisor, or editor for a commercial publishing company, “if such service involves consultation and advice concerning the work of authors other than themselves” (Opinion 96-143/97-43/97-58/97-66/97-96) or contribute a Foreword to another author’s commercially published law book (see Opinion 97-01). In such activities, the judge could readily be seen as lending the prestige of judicial office to the commercial, for-profit enterprise of another, rather than pursuing the judge’s own avocation as an author or co-author.

         Here, too, we believe it would be improper for the judge to recommend the judge’s law clerk, other attorneys, and/or a judicial colleague to contribute to the casebook.

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¹ In Opinion 03-69, we said a judge may not permit their law clerk to co-author articles with an attorney whose law firm litigates frequently before the judge in the area of the law covered by the proposed articles. Because this judge will not have occasion to consider appointing the psychologist, we need not consider whether or how Opinion 03-69 might apply here.