Opinion 13-06

June 13, 2013

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

Digest:         A court attorney referee may write and edit the pocket part update for a commercially available for-profit legal publication and receive reasonable compensation in accordance with 22 NYCRR 100.4(H)

Rules:          22 NYCRR 100.2; 100.2(A);100.3(B)(8); 100.4(B); 100.4(H); 100.4(H)(1)(a); 100.4(H)(2); 100.6(A); Opinions 08-91; 03-65; 90-24 (Vol. V); Joint Opinion 96-143/97-43/97-58/97-66/97-96 (Vol. XV).

Opinion:

         A court attorney referee asks whether he/she may write and edit the pocket part update for a commercially available for-profit legal publication. The inquirer explains that his/her role as an editor is not to offer interpretations or predictions of the law, but to report the holdings of relevant cases, and offer brief factual explanations of changes in statutes and case law (e.g., noting that a new argument is being recognized, or a case is being reversed). The inquirer advises that he/she will receive some “minimal compensation” for the work.

         The Committee previously has advised that court attorney referees are subject to the Rules Governing Judicial Conduct in the performance of their judicial functions and otherwise “shall so far as practical and appropriate use such rules as guides to their conduct” (22 NYCRR 100.6[A]; Opinion 08-91).

         A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2)and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may engage in permissible extra-judicial activities, including writing, subject to the requirements of the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[B]). Therefore, the Committee has advised that a judge may contribute to a monthly update service that reports recent Appellate Division decisions on matrimonial law (see Opinion 03-65); contract with a commercial publishing company to write on legal matters, including writing civil practice commentaries for a publication dealing with New York Civil Practice (see Joint Opinion 96-143/97-43/97-58/97-66/97-96 [Vol. XV]); and write commentaries on criminal law for a legal publisher (see Opinion 90-24 [Vol. V]).

         The Committee notes that the nature of the inquirer’s work on the pocket part updates is such that the inquirer will need to describe cases which are still “pending or impending” within the meaning of the Rules, if a matter has not been finally resolved and the time for appeal has not yet been exhausted (see 22 NYCRR 100.3[B][8]).¹ The Committee believes that minimal and essentially factual commentary on changes in the law in the context of updating a legal treatise – indicating the nature and extent of changes, unresolved questions, any regional differences (such as a department or circuit split), and procedural impacts that are clear on the face of a decision - does not constitute impermissible public comment within the meaning of the Rules, provided that the writer does not resolve ambiguities or otherwise interpret the opinions described, and does not express subjective praise or criticism of them (see 22 NYCRR 100.3[B][8]).

         Finally, a judge may receive reasonable compensation for producing written legal materials for publication, but must report the compensation as provided by the Rules Governing Judicial Conduct (see 22 NYCRR 100.4[H][1][a]; 100.4[H][2]). Thus, the inquirer also may write and edit the pocket part update for a commercially available for-profit legal publication and receive reasonable compensation in accordance with 22 NYCRR 100.4(H).

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            ¹ A legal treatise typically strives to give readers a sense of the overall development of the law in a certain area, and it is generally not sufficient to provide citations to new cases without some brief description of their significance or relevance so that readers can determine whether they wish to review the opinion. In effect, the writer/editor of the treatise is preparing the functional equivalent of head notes, which help readers find relevant opinions but are not intended to substitute for, or comment on, the opinions themselves.