Opinion 03-65

June 12, 2003

Digest:         A full-time judge who presides in a matrimonial part may contribute to a monthly update service that reports recent Appellate Division decisions in the area of matrimonial law but must ensure that the publisher does not engage in any marketing or other promotional activity that can reasonably be perceived to exploit the judge’s judicial position.

Rule:            22 NYCRR 100.4(B); 100.4(D)(1);100.4(D)(3); Opinion 90-24 (Vol. V); Joint Opinion 96-143/97-43/ 97-58/ 97-66/97-96 (Vol. XV).

Opinion:

         A full-time judge who presides in a matrimonial part asks whether it is ethically permissible for the judge to contribute to a monthly update service that reports recent Appellate Division decisions in the area of matrimonial law. The judge would assist in the compilation of the decisions, but would not provide any commentary on the decisions. The judge will be compensated for his/her services.

         Section 100.4(B) of the Rules Governing Judicial Conduct provides that, “A judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this Part.” In addition, section 100.4(D)(1) precludes a judge from engaging in financial and business dealings that “. . . may reasonably be perceived to exploit the judge’s judicial position.” In Joint Opinion 96-143/97-43/97-58/97-66/97-96 (Vol. XV), this Committee wrote extensively about the ethical implications of judges writing for a commercial legal publishing company. In that Opinion, the Committee advised that a judge may write civil practice commentaries for a commercial law publisher. And, in Opinion 90-24 (Vol. V), the Committee advised that judges presiding over criminal cases may, subject to certain caveats, write commentaries for a publisher on criminal law.

         The essence of these opinions is that such materials are available almost exclusively through commercial ventures, and, therefore, application of the prohibition against being an active participant in a business entity set forth in section 100.4(D)(3) of the Rules must be tempered by this reality. Otherwise, the legal profession and the public as a whole would lose the benefit of having judges write on legal topics.

         In light of these earlier opinions, the Committee is of the view that the judge in the present inquiry may contribute to a monthly update service that reports recent Appellate Division decisions in the area of matrimonial law without providing any commentary on the decisions, and may receive compensation for doing so. The judge may be identified as a contributor to the monthly update, but must ensure that the publisher does not engage in any marketing or other activity, that can reasonably be perceived to exploit the judge’s judicial position. 22 NYCRR 100.4(D)(1).