Opinion 20-85

September 10, 2020

Digest:         A judge may write and post a book review online, provided it is not for the purpose of promoting the book’s sale. The judge must not authorize use of the review on the book jacket or elsewhere to promote sales of the book.

Rules:          22 NYCRR 100.2(A); 100.2(C); 100.3(A); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); Opinions 20-59; 19-87; 16-05; 15-162; 15-103; 12-26; 11-54; 06-114; 06-105; 05-28; 99-145; 97-133; 93-14.

Opinion:

         The inquiring full-time judge asks if he/she may post a book review of a friend’s novel online. The judge would not mention his/her judicial position.

         A judge must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Because a judge’s judicial duties take precedence over all the judge’s other activities (see 22 NYCRR 100.3[A]), any extra-judicial activities must not be incompatible with judicial office (see 22 NYCRR 100.4[A][3]). A judge’s extra-judicial activities also must not cast reasonable doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]).

         Although a full-time judge may not serve as an “active participant of any business entity” (see 22 NYCRR 100.4[D][3]), both full-time and part-time judges may generally engage in avocational activities such as speaking, writing, lecturing and teaching (see 22 NYCRR 100.4[B]). Indeed, we have said “a judge, whether full-time or part-time, may write a book and profit from its publication, notwithstanding the involvement of a commercial publisher” (Opinion 20-59).

         Accordingly, we have advised that judges may write and publish children’s books and works of fiction (see Opinions 15-162; 06-105; 99-145) and participate in non-commercial internet podcasts discussing fictional and comic book characters (see Opinion 16-05).

         We have also said a judge may publish book reviews of fiction or non-fiction books for local newspapers, “but may not permit the author or publisher to use any portion of the review to promote the book’s sale” (Opinions 06-114 [book authored by clergy member]; 05-28 [fictional work]; 93-14 [book about legal issues]).

         Thus, for example, a judge may not provide “a quote for inclusion on the inside leaf of [a] book” (Opinion 11-54) nor “a testimonial which would be included in a brochure used for marketing purposes” (Opinion 97-133). A judge also “may not author a quote about a book involving legal issues simply to be used on the book jacket in conjunction with its sale” (Opinion 93-14) or provide an endorsement of a non-fiction book that would appear on the book’s back cover, even if the endorsement is attributed only generically to a New York State judge without use of the judge’s name (see Opinion 12-26).

         In our view, our long-standing precedent allowing judges to write and publish both fiction and non-fiction through commercial publishers also justifies continuing to allow judges to write and publish book reviews. We thus treat book reviews differently from rating attorneys or vacations, and decline to apply the rationale of recent opinions prohibiting judges from reviewing their personal “attorney on an online ratings service displaying reviews to the public” (Opinion 15-103) or from publishing “an online review of a personal vacation or a professional vacation organized by a bar association or other professional organization” (Opinion 19-87).

         Finally, we believe the same principles apply whether the book review will be published in print or posted online. Accordingly, we conclude this judge may write and publish a book review, provided he/she does not post it for the purpose of promoting the book’s sale (see Opinions 06-114; 05-28; 93-14). The judge also must not authorize use of any portion of his/her review on the book jacket or elsewhere to promote sales of the book (see Opinions 12-26; 11-54; 06-114; 05-28; 93-14).