Opinion 14-23

March 13, 2014

Digest:         A full-time judge who has independently written, published, marketed, and sold a bench book online is not prohibited from also selling the book directly to the Unified Court System’s Office of Court Administration.

Rules:          22 NYCRR 100.4(H)(1)(C); Opinion 10-84.

Opinion:

         A full-time judge who independently wrote, self-published, and marketed a bench book online asks whether he/she may, at the request of the Unified Court System’s Office of Court Administration (OCA), submit a proposal for OCA to purchase the book in bulk and, if the proposal is accepted, sell the book directly to OCA. It appears from the inquiry that OCA wishes to purchase and distribute the book to other judges within the Unified Court System.

         The Committee has previously advised that, subject to all applicable provisions of the Rules Governing Judicial Conduct, a full-time judge may publish a bench book on a particular topic, and may market the book and collect revenues and royalties from the sales (see Opinion 10-84).

         The only novel issue presented here is whether Section 100.4(H)(1)(c) bars a full-time judge from engaging in this otherwise-permitted activity, when the prospective purchaser is an office or agency of New York State. This section provides: “No full-time judge shall solicit or receive compensation for extra-judicial activities performed for or on behalf of: (1) New York State, its political subdivisions or any office or agency thereof” (22 NYCRR 100.4[H][1][c]).

         The Committee notes that, under the circumstances presented, the judge independently wrote, published, marketed, and sold his/her bench book; accordingly, the book was not written or published “for or on behalf of” the Unified Court System or OCA and Section 100.4(H)(1)(c) does not apply.¹ Therefore, the inquiring judge may propose sales terms for OCA to purchase the book in bulk and may, if accepted, sell the book directly to OCA.

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     ¹ Moreover, assuming that the judge has the legal right to sell and market the bench book as his/her own intellectual property, as the judge has done for other purchasers, the Committee does not believe that Section 100.4(H)(1) requires a judge to give away that same intellectual property for free to governmental purchasers.