Opinion 18-93

June 21, 2018

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

Digest:         A full-time judge who developed a bar exam study aid and makes it available on an online app store may (1) associate his/her name with the app itself; (2) mention his/her judicial status in an online bio; (3) speak with law school administrators and students about their interest in obtaining the app; and (4) accept income from online sales of the app, subject to reporting requirements.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(D)(1)(a); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); Opinions 17-01; 16-06; 15-182; 14-158; 13-89; 13-76; 10-95; 00-24; 00-01.

Opinion:

         The inquiring full-time judge developed and owns an educational software application (“app”) which is available for purchase through a well-known online app store. The app is a “study aid that assists in learning and memorizing legal concepts and buzzwords.” Its target audience is “law school students [and others] preparing to sit for their state bar exam.” The judge asks several questions about marketing and selling the app:

1. May the judge’s name be “associated with the [a]pp itself”?

2. May the judge identify him/herself as a “current [geographic location] Judge” in an online bio for the app?

3. May the judge speak with law school administrators and students “about their interest in obtaining the app”?

4. “Is there any restriction on the ability to earn income from the sale of the app?”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes 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 private interests (see 22 NYCRR 100.2[C]) or engage in financial and business dealings that “may reasonably be perceived to exploit the judge’s judicial position” (22 NYCRR 100.4[D][1][a]). In addition, a full-time judge must not serve as an “active participant of any business entity” (22 NYCRR 100.4[D][3]). However, a full-time judge may receive compensation for permissible extra-judicial activities as permitted by the Rules, “if the source of such payments does not give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (22 NYCRR 100.4[H][1]). Among other restrictions, such compensation “shall not exceed a reasonable amount (22 NYCRR 100.4[H][1][a]), and the judge must report “the date, place and nature of any activity for which the judge received compensation in excess of $150, and the name of the payor and the amount of compensation so received … at least annually … in the office of the clerk of the court on which the judge serves” (22 NYCRR 100.4[H][2]).

1. Associating the Judge’s Name with the App

         Although the judge may not exploit his/her judicial position or title in promoting the app (see Opinion 10-95; 22 NYCRR 100.2[C]; 100.4[D][1][a]), he/she may certainly be recognized as the app’s developer and owner (cf. Opinions 15-182 [judge may appear on book jacket and at book signings as author]; 00-24 [judge may act, under his or her own name, in a not-for-profit community theater production, and be compensated]).

         We conclude the judge may, as requested, associate her/his name with an educational app he/she created, without reference to his/her judicial status.¹

2. Identifying the Judge’s Judicial Status in an Online Bio

         A judge “is not prohibited from using his/her judicial title when engaging in extra-judicial activities as long as the judge does not exploit his/her judicial position in the process” (Opinion 13-76). Indeed, a judge who has written a book may identify him/herself as a judge and appear in judicial robes on the cover (see e.g. Opinions 15-182; 13-89). Here, the judge will not mention his/her judicial status in the name or description of the app, but solely in an associated online bio. We believe this is permissible (cf. Opinion 14-158 [part-time judge may include his/her judicial status within the body of his/her online law firm biography or profile, but not in the heading or directory listing]).

         We conclude the judge may, as requested, identify him/herself as “a current [geographic location] judge” in an online bio for the app.

3. May the judge speak with law school administrators and students “about their interest in obtaining the app”?

         In Opinion 15-182, we said a judge who has written a law-related book “may participate in traditional book-signing events and public discussions of the book,” subject to generally applicable restrictions on judicial speech and conduct, and therefore he/she (id. [footnote omitted]):

may appear throughout the United States to promote his/her book, attend and participate in book signing events, and speak at bookstores, law schools, and bar associations in New York, and have copies of the book available for purchase at such events.

Here, too, the judge may speak with law school administrators and students concerning their interest in obtaining the app. For example, the judge may answer questions about the app and provide information about how to find it in the app store.

4. Income Limits from App Sales

         Full-time judges “may have their written works published and sold by a for-profit publishing company as that activity is generally only available in commercial settings and may be compensated for their efforts” (Opinion 10-95 [footnote omitted]). Likewise, a full-time judge “may publish legal commentary and analysis through an online software tool” without running afoul of the prohibition on being an active participant in a business entity, when the judge eschews “direct involvement with marketing, sales, billing, collections or accounting practices” (id.). Here, the judge has ensured insulation from sales, billing, collections, and accounting practices by offering the app for sale to the public through a third-party app store that essentially serves as a “publisher” or retail interface for apps. The judge must, of course, ensure that his/her judicial position is not exploited in the promotion of such works (see Opinions 16-06; 10-95; 22 NYCRR 100.4[D][1][a]).

         Although compensation for a full-time judge’s extra-judicial activities “shall not exceed a reasonable amount” (22 NYCRR 100.4[H][1][a]), neither the Rules nor our prior opinions purport to set a sales price for the judge’s intellectual property (see e.g. Opinions 00-01 [full-time judge may sell a patent for an invention owned by the judge]; 10-95 [full-time judge may “develop, publish and accept compensation” for an online software tool]), and we decline to do so here. As long as the judge’s judicial position is not exploited to promote the work, we assume the sales price will be dictated by market forces or by a publisher or other merchant who sells such goods to the public. The judge’s overall compensation will then be determined by the number of willing buyers at that price.

         Thus, as a practical matter, we conclude the Rules do not limit the judge’s income from sales of the app. However, “compensation in excess of $150.00 is subject to reporting requirements” (Opinion 17-01; 22 NYCRR 100.4[H][2]).

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¹ We assume the judge proposes to use his/her given name and/or surname in the app’s name or description visible in the online app store (e.g. the app might be named “[John/Jane Doe]’s Study Aid App”).