Opinion 05-28

March 10, 2005

Digest:         A judge may write a book review of a work of fiction, but should not permit the author or publisher to use any portion of the review to promote the book’s sale.

Rule:            22 NYCRR 100.2(C); 100.4(B); Opinions 87-13 (Vol. I); 93-14 (Vol. X) 97-133 (Vol. XVI ); 99-145 (Vol. XVIII).

Opinion:

         A judge asks whether he/she may write a book review of a work of fiction, which review will be published in a local legal newspaper.

         Prior to January 1, 1996, the then section 100.5(a) of the Rules Governing Judicial Conduct (“Extra Judicial Activities”), provided: “(a) Avocational Activities. A judge may write, lecture, teach and speak on non-legal subjects, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of the office or interfere with the performance of judicial duties.” The 1996 revision of the Rules combined former sections 100.4 and 100.5 into a single Rule. Specifically, section 100.4(B) of the present Rules, states: “(B) Avocational Activities. A judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of this part.”

         Thus, rather than spell out the various kinds of extra-judicial activities in which a judge may engage, it was determined that it was more appropriate simply to acknowledge that judges may participate in activities outside the realm of their judicial office, without any necessity to delineate permissible categories of conduct. Otherwise, a delineation might (erroneously) be seen as precluding that which is not specified. It thus follows that as a matter of judicial ethics, a judge - just like a non-judge - may engage in a myriad of activities mentioned in 100.4(B), provided of course, the particular activity, or conduct in connection therewith does not contravene any other provision of the Rules Governing Judicial Conduct.

         Accordingly, a judge may write on non-legal matters, just as was previously specified in the predecessor to the present rules governing extra-judicial activities; and as we have previously held, this would include writing a work of fiction. Opinion 99-145 (Vol. XVIII). It further follows, in our opinion, that a permissible writing on a non-legal topic would include the writing of a book review of a work of fiction, since no provision of the Rules Governing Judicial Conduct, directly or by implication, inference or interpretation prohibits the writing of such a review.

         This does not mean that there are no ethical considerations involved in the writing and publication of a book review. In particular, in this instance, the judge should take care, to the extent possible, that the review not be used in any way to promote the sale of the book (assuming the review is favorable). In Opinion 93-14 (Vol. X), the inquiring judge was advised that although it was not improper to write a review of a law book, it was improper ‘[t]o review a book simply for the purpose of providing a quote on the book jacket in conjunction with its sale.” Permitting such use of the review would, the Committee opined, violate section 100.2(C) of the Rules which states, that “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . .” 22 NYCRR 100.2(C). See also, Opinions 87-13 (Vol. I), 97-133 (Vol. XVI). The same principle applies to the instant matter, and we advise the judge to inform the legal newspaper, in writing, that the review is being provided on the understanding that permission will not be granted to the author or publisher to use any portion of the review to promote the book’s sale.