Opinion 14-52

April 24, 2014

Digest:         A judge may permit an author to observe proceedings in the judge’s courtroom and write about them and about the individuals involved, and may respond to the author’s general questions about the court and its legal procedures; provided the judge does not comment on pending or impending cases or otherwise act in a manner that causes the judge’s impartiality to reasonably be questioned.

Rules:          Judiciary Law § 4; 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(B)(2); 100.3(B)(3); 100.3(B)(8); 100.4; 100.4(A)(1)-(3); 100.4(B); Opinions 11-130; 11-105; 10-115; 10-95; 07-188; 99-45 (Vol. XVII); 97-56 (Vol. XV); Joint Opinion 11-154/11-155.

Opinion:

         An author who intends to write a book about the criminal justice system in the jurisdiction where the judge presides has asked the inquiring judge for permission to "sit in [the judge's] courtroom every day for a year and watch the proceedings;" to speak with prosecutors, defense attorneys, and defendants who are willing to talk with him; and at times to ask the judge to explain certain legal procedures, such as what it means to order a "730 examination" of a defendant. According to the judge, the author proposes to write about “what happens in the court, how the legal process works, how the defendants view their cases unfolding before them, the effect the court and the legal system has {sic} on them and their families,” and the inquiring judge believes the author will write a fair and unbiased book about the criminal justice system and “hopefully dispel some of the myths.” The judge advises he/she would be careful not to comment on any pending or impending matters. The author also would ask the judge for biographical information for the book, but the judge would not promote the book or receive any compensation for his/her participation in the author’s work. The judge asks whether he/she may participate as described.

         A judge must always 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 must not lend the prestige of judicial office to advance the private interests of the judge or others (see 22 NYCRR 100.2[C]). A judge may engage in extra-judicial activities, such as speaking or writing about the law, the legal system or the administration of justice, but must seek to minimize the risk of conflicts with judicial duties (see 22 NYCRR 100.4) and may not engage in extra-judicial activities that cast reasonable doubt on the judge’s capacity to act impartially as a judge, that detract from the judicial office’s dignity, that interfere with the proper performance of judicial duties, or that are otherwise incompatible with judicial office (see 22 NYCRR 100.4[A][1]-[3]). A judge must not make any public comment about a pending or impending proceeding in the United States or its territories but may explain for public information the procedures of the court (see 22 NYCRR 100.3[B][8]). A judge must require order and decorum in proceedings before the judge (see 22 NYCRR 100.3[B][2]) and must require persons who are subject to the judge's direction and control to be dignified and courteous to litigants and lawyers (see 22 NYCRR 100.3[B][3]).

         Pursuant to Judiciary Law §4, the sittings of every court must be public and every citizen may freely attend, unless in certain permitted circumstances, the judge closes the courtroom. In the Committee’s view, the judge may “consent” to the author’s presence in his/her courtroom during any proceedings the public has a legal right to attend.

         The Committee previously has advised that a judge may participate in a not-for-profit organization’s research program on adolescent development and juvenile justice and may discuss “the judge’s work in the area of juvenile justice and its implication for research, practice and policy” (Opinion 97-56 [Vol. XV]). And, subject to certain caveats, a judge may serve as a consultant to an academic research project about jurors’ memories (see Opinion 10-115). In both cases, the Committee cautioned the inquiring judge to avoid raising doubts about the judge’s impartiality and to refrain from public comment about pending or impending cases in the United States or its territories (see Opinions 10-115; 97-56 [Vol. XV]).

         Here, the author’s proposed subject matter, as described in the inquiry, clearly involves the law, the legal system and the administration of justice. The judge may answer questions about the court and legal procedures (see 22 NYCRR 100.3[B][8]; 100.4[B]; Opinion 07-188 [judges are specifically encouraged to become involved in extra-judicial activities concerning the law, the legal system and the administration of justice]). Nevertheless, the judge must adhere to the same Rules and caveats noted in the Committee’s earlier opinions, including the prohibition on commenting on pending or impending cases (see 22 NYCRR 100.2; 100.3[B][8]). In addition, the judge must ensure that the author’s presence in the courtroom does not negatively impact the order and decorum of court proceedings (see 22 NYCRR 100.3[B][2]). To help avoid the appearance of impropriety, including any possible appearance that the judge may be lending the prestige of judicial office to advance the author's private interests, the judge should not permit the author to sit at the bench (see Opinions 11-130; 99-45 [Vol. XVII]).

         The Committee presumes the book publisher is a for-profit entity. However, as the judge advises he/she will receive no compensation for his/her participation and will not promote the book, this factor does not preclude the judge’s participation as described (See Opinions 11-105; 10-95; Joint Opinion 11-154/11-155).

         The author’s proposal to interview participants in the proceedings that take place in the judge’s court does not, without more, present a question of judicial ethics. However, to avoid any possible appearance of impropriety, the judge should not arrange, promote or endorse the interviews.

         The inquiring judge is welcome to seek further guidance, should additional judicial ethics questions arise in the course of the author’s proposed project. However, the Committee cannot herein comment on any possible legal or administrative questions that may arise in the future.