Opinion 12-31 - Revised

March 29, 2012

Dear:

         This responds to your inquiry (12-31) asking whether it is ethically permissible for you to author an article in which you disagree with court holdings in an area of federal law that does not apply in New York; suggest alternative ways to construe such federal law; and propose reforms to current doctrine. In addition, you ask whether you may use judicial stationery or email to submit the article for publication.

         While the Rules Governing Judicial Conduct allow a judge to write about the law (see 22 NYCRR 100.4[B]), this extra-judicial activity must not interfere with a judge’s judicial duties, and the judge must not comment on pending or impending cases or express a bias or predisposition with respect to cases, controversies or issues that are likely to come before him/her (see 22 NYCRR 100.2[A]; 100.3[B][8] and [9]). Thus, the Committee has previously advised that judges should limit their legal writing to scholarly articles that review applicable statutes and cases in order to avoid the risk of perceived partiality or predisposition (see 22 NYCRR 100.3[E][1]).

         However, because you indicate that you do not intend to discuss any pending or impending cases and that the issues you will address in your article involve only federal law and are not likely to ever come before you as a New York State judge, it is ethically permissible for you to write and publish the article as you have described it.

         Also, it is ethically permissible for you to use judicial stationery or judicial e-mail to submit your legal article for publication provided any such correspondence is marked as personal and unofficial. And, with respect to the use of e-mail, you should ensure that such use complies with any applicable administrative policies.

         Enclosed, for your convenience, are Opinions 10-153; 05-158; 05-70; 04-115; 98-67 and Joint Opinion 90-123/90-133 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Chair

Encls.