Opinion 16-06
January 28, 2016
Digest: (1) A full-time judge may generally publicize his/her book and participate in book signing and other promotional events the publisher organizes, but where the work is a children’s book unrelated to the law, the judge may not personally participate in promotions that specifically target attorneys or the legal profession. Thus, the judge may participate in book-signing events at libraries, schools, civic organizations, or shopping centers, but not at bar associations or law firms. The judge may spread news of its publication to friends, family or the general public, but may not aim at attorneys. The judge may read the book at a school, provide complimentary copies to friends, family, libraries, and members of the public and advise, on request, where the book may be purchased. (2) A judge who has written a children’s book may permit the use of his/her judicial title and a photograph, taken while wearing his/her judicial robe, on the book’s back cover.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(C)(3); 100.4(D)(1)(a)-(c); 100.4(H)(1); Opinions 15-182; 13-89; 10-95; 10-84; 06-105; 05-28; 02-133; 01-58; 90-73.
Opinion:
A full-time judge who wrote a children’s book, being published by a commercial publisher, asks about participating in certain promotional activities. Specifically, the judge asks if he/she may participate in a book signing the publisher organized at a library, school, a civic organization, a bar association, a law firm, or a shopping center; spread the news that the book has been published, whether in person, in writing, or through social media, to friends and family, attorneys, or the general public; give complimentary copies of the book to friends, family, attorneys, libraries and members of the public; tell people, on request, where the book may be purchased; permit the publisher to mention the judge’s judicial status; appear in judicial robes on the book’s back cover; and read the book at the judge’s children’s elementary school.
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]). Although “[a] judge may speak, write, lecture, teach and participate in extra-judicial activities” (22 NYCRR 100.4[B]), such extra-judicial activities must not interfere with his/her judicial office and must 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 (see 22 NYCRR 100.4[A][1]-[3]). Moreover, a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), convey or permit others to convey the impression that they are in a special position to influence the judge (see id.), or engage in financial and business dealings that (1) may reasonably be perceived to exploit the judge’s judicial position; (2) involve the judge with any business or organization that ordinarily will come before the judge; or (3) involve the judge in frequent transactions or continuing business relationships with lawyers or other persons likely to come before the judge’s court (see 22 NYCRR 100.4[D][1][a]-[c]).
In Opinion 05-28, the Committee advised:
[R]ather than spell out the various kinds of extra-judicial activities in which a judge may engage, it was determined [in adopting the Rules Governing Judicial Conduct] that it was more appropriate simply to acknowledge that judges may participate in activities outside the realm of their judicial office, without any necessity to delineate permissible categories of conduct. Otherwise, a delineation might (erroneously) be seen as precluding that which is not specified. It thus follows that as a matter of judicial ethics, a judge – just like a non-judge – may engage in a myriad of activities mentioned in 100.4(B), provided of course, the particular activity, or conduct in connection therewith does not contravene any other provision of the Rules Governing Judicial Conduct.
In the Committee’s view, most of the described promotional activities do not raise any ethical problems. For example, a judge who authors a book “may participate in traditional book-signing events and public discussions of the book,” provided that he/she abides by the applicable restrictions on judicial speech and conduct (Opinions 15-182; see also 10-84). Additionally, the Committee has consistently stated a judge, participating in permissible extra-judicial activity, need not hide his/her judicial identity (see Opinions 10-84) and, therefore, may permit the use of his/her judicial title and a photograph, taken while wearing his/her judicial robe, on the back cover of a book he/she wrote (see Opinions 15-182; 13-89; 06-105).
The Committee has previously advised that a judge who authored a book about a particular area of law may appear at bookstores, law schools and bar associations to attend and participate in book-signing events and speak about his/her book, provided these extra-judicial activities do not interfere with the judge’s judicial duties (see Opinion 15-182 fn 3 [observing that prior opinions in this area can be heavily fact-specific and encouraging judges to write in for guidance on their own particular circumstances]). Since the Rules specifically authorize judges to engage in avocational pursuits such as speaking, writing, lecturing, teaching and participating in the undertakings of organizations devoted to the law, the legal system or the administration of justice, the Committee concluded the judge may engage in book signing events for his/her law book at bar associations and law schools (see id.; see also 22 NYCRR 100.4[B]; 100.4[C][3]).
The inquiring judge, by contrast, has written a children’s book which is unlikely to have any special appeal to the legal community separate from the judge’s judicial status. The Committee therefore believes this judge should not promote his/her children’s book at a law firm or bar association, as it could, at the very least, create an appearance the judge is lending the prestige of judicial office to advance his/her private interests (see 22 NYCRR 100.2[C]; Opinion 02-133 [a judge may not participate in a book-signing at the courthouse, as this would impermissibly lend the prestige of judicial office to advance the judge’s private interests]).
In these circumstances, it would be virtually impossible to separate the judge’s judicial position from the judge’s private avocational activities. A judge’s appearance at a law firm to promote his/her book could also potentially create an appearance that the firm is in a special position to influence the judge (see generally 22 NYCRR 100.2[C]; Opinion 01-58 [a full-time judge should not provide instruction in legal writing and advocacy skills if limited to one private law firm]; see also 22 NYCRR 100.4[D][1][a]-[c]; 100.4[H][1] [source of judge’s extra-judicial compensation must not create an appearance of impropriety]; cf. Opinion 10-95 [noting that a full-time judge who offers online legal commentaries for sale to the public must refrain from direct involvement with marketing, sales, billing, collections and accounting practices]). Moreover, the judge should not promote his/her children’s book specifically to attorneys, to avoid any appearance of pressure or misuse of judicial office (cf. Opinions 06-105; 90-73 [a judge must avoid appearance of coercion]).
Thus, this judge may participate in promoting his/her children’s book by participating in book-signing events at libraries, schools, civic organizations, or shopping centers, but not at bar associations or law firms. The judge may spread the news of his book to friends, and family, and the general public, but may not specifically target attorneys. The judge may read the book at an elementary school, provide complimentary copies to friends, family, libraries, and members of the public and advise, on request, where the book may be purchased. The judge may also permit the use of his/her judicial title and a photograph, taken while wearing his/her judicial robe, on the book’s back cover (see Opinions 15-182; 13-89; 06-105).