Opinion 10-84

June 10, 2010

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

Digest:         Subject to all applicable provisions of the Rules Governing Judicial Conduct, a full-time judge may publish a Bench Book relating to a particular topic that he/she commonly addresses in cases over which he/she presides, may market the book, and may collect revenues and/or royalties based on its sales.

Rules:          22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 100.3(B)(9)(b); 100.4; 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(1)(c); 100.4(H)(2); Opinions 09-08; 06-105; 05-149; 99-145 (Vol. XVIII); 95-145 (Vol. XIII); 93-37 (Vol. XI); 90-24 (Vol. V]).

Opinion:

         A full-time judge asks whether he/she may copyright a Bench Book relating to a particular topic that he/she commonly addresses in cases in which he/she presides, market the book and collect revenues and/or royalties based on book sales.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge may engage in extra-judicial activities that do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties and are not incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). Such permissible extra-judicial activities include writing (see 22 NYCRR 100.4[B]).

         A full-time judge may receive compensation for engaging in permissible extra-judicial activities if the source of the payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety (see 22 NYCRR 100.4[H][1]). However, any such compensation shall not exceed a reasonable amount or an amount that a person who is not a judge would receive for the same activity (see 22 NYCRR 100.4[H][1][a]). Also, a full-time judge cannot solicit or receive compensation for extra-judicial activities performed for or on behalf of New York State, its political subdivisions or any office or agency thereof; a school, college or university that is financially supported primarily by New York State or any of its political subdivisions, or any officially recognized body of students thereof, except that a judge may receive the ordinary compensation for a lecture or for teaching a regular course of study at any college or university if the teaching does not conflict with the proper performance of judicial duties; or any private legal aid bureau or society designated to represent indigents in accordance with article 18-B of the County Law (see 22 NYCRR 100.4[H][1][c]). And, a full-time judge must file a report of the date, place and nature of any activity for which the judge received compensation in excess of $150, the name of the payor and the amount of compensation received, at least annually, and must file such report as a public document in the office of the clerk of the court on which the judge serves or other office designated by law (see 22 NYCRR 100.4[H][2]).

         The Committee previously has advised (1) that a full-time judge who presides in criminal cases may write commentaries on criminal law for a publisher and accept compensation for doing so (see Opinion 90-24 [Vol. V]); (2) that a Supreme Court Justice may publish a manual on criminal narcotics prosecution and procedure and profit from sales of the manual (see Opinion 93-37 [Vol. XI]); and (3) that a Supreme Court Justice may co-author a law book with an attorney and profit from sales of the book (see Opinion 95-145 [Vol. XIII]). The Committee also has advised that a full-time judge may write works of fiction and have them published (see Opinion 99-145 [Vol. XVIII]) and may engage in developing and producing a CD of original copyrighted songs that the judge wrote and performed (see Opinion 05-149).

         The Committee also had advised that self-publication is permissible (see Opinion 09-08).

         With respect to marketing activities, the Committee has advised that a judge who is participating in a permissible extra-judicial activity is not required to hide his/her identity as a judge but must refrain from using that identity to further his/her personal interests or the interests of another (see Opinion 06-105). Therefore, a company with which a judge is self-publishing a work of fiction may mention the judge’s judicial position in a press release and may include a statement on the book cover indicating that the judge currently presides in a particular court. In addition, the judge/author may participate in traditional book-signing gatherings and public discussions of the book, and may state that he/she is a judge in response to questions posed by attendees at such events about his/her vocation (see id.). However, the judge must not comment on any pending or impending cases (see id.; see also 22 NYCRR 100.3[B][8]) and may not indicate that he/she is predisposed to decide a particular class of cases in a particular way (see 22 NYCRR 100.3[B][9][b]).

         Therefore, the inquiring judge may publish a Bench Book relating to a particular topic that he/she commonly addresses in cases in which he/she presides, may market the book and collect revenues and/or royalties based on the sales of the book, and may apply to copyright his/her Bench Book. However, the judge must comply with the caveats set forth in the Opinions cited above and all applicable provisions of the Rules Governing Judicial Conduct while engaging in such extra-judicial activity (see generally, 22 NYCRR 100.4).¹ 

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             ¹ The Chief Judge temporarily suspended Section 100.4(D)(3) of the Rules Governing Judicial Conduct (limitations on extra-judicial business activity) effective October 13, 2010. Judges should contact Counsel for the Office of Court Administration for more information.