Opinion 07-37
April 19, 2007
Please note that Opinion 05-134, one of several Opinions cited herein for the proposition that "the Committee has allowed a judge to participate in training or education programs designed for lawyers on one side," has been overruled (see Opinion 12-44 [advising that a judge may not preside at and offer a critique of a mock trial to be held during a trial skills training program for prosecutors]). Nonetheless, Opinion 12-44 recognizes that in many other circumstances, a judge may participate in training or education programs designed for lawyers on one side (see Opinion 12-44 [discussing cases]). The Committee notes that the advice contained in present Opinion is not affected by Opinion 12-44 and thus remains in effect.
Digest: A judge may write a chapter for a book on prosecutorial ethics, published by a nationwide organization of prosecutors and available for purchase by all members of the Bar and the general public, provided the judge abides by certain caveats.
Rules: 22 NYCRR 100.3(B)(8); 100.4(A)(1); 100.4(B); Opinion 05-134; Joint Opinion 03-84 and 03-89; Opinions 01-22 (Vol. XIX); 93-54 (Vol. XI); 90-24 (Vol. V).
Opinion:
A judge inquires whether he/she may write a chapter for a book on prosecutors’ ethics and civil liability. The book will be published by a nationwide organization of prosecutors, and is available for purchase by all members of the Bar and the general public.
The judge has submitted a draft of the chapter to the Committee, which contains “a series of pretrial dilemmas that prosecutors face on a day-to-day basis, with practical suggestions for appropriate responses.” The suggestions are based on a scholarly treatment of legal sources. The judge does not discuss litigation strategy, but instead provides the judge's interpretation of a prosecutorial ethics applicable to certain hypothetical situations. (This Committee takes no position on the correctness of the judge’s suggestions or interpretations).
The Rules Governing Judicial Conduct allow a judge to speak, write, lecture and teach, subject to certain limitations. 22 NYCRR 100.4(B). This Committee has stated that a judge currently sitting in a criminal term may write commentaries for a publisher, on criminal law. Opinion 90-24 (Vol. V). The Committee has further determined, however, that “because the inquiring judge sits in a criminal term, that judge should refrain from urging a particular outcome in commentaries for cases that remain in litigation.” Opinion 90-24 (Vol. V). In the present inquiry, the judge does not sit in criminal term, and in constrast to the commentaries involved in Opinion 90-24, although the present publication is designed for use by prosecutors, any member of the Bar or general public may purchase a copy.
In our view, this book’s intended use as a guide to assist prosecutors does not ethically preclude authorship by the judge. This Committee has previously approved speaking or writing to an audience associated with one side of a case, provided certain limitations are observed. For instance, the Committee has allowed a judge to participate in training or education programs designed for lawyers on one side, such as trainees in the New York City Corporation Counsel's Office, an organization of consumer lawyers, and an organization that represents battered women in custody proceedings. Opinions 05-134; Joint Opinion 03-84 and 03-89; Opinion 93-54 (Vol. XI). In addition, a judge may write a column about recent court decisions that affect the business community, for a newsletter published by a Chamber of Commerce. Opinion 01-22 (Vol. XIX).
The foregoing opinions also state that in the course of such activities, the judge may not make any comment about a pending or impending case, must avoid any perception of partiality or a predisposition to decide matters in a particular way, and may not give partisan advice on strategy. Id.; 22 NYCRR 100.3(B)(8); 100.4(A). If the inquiring judge’s proposed chapter conforms to these requirements, there is no ethical bar to its publication.