Opinion 21-117

September 9, 2021

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

Digest:         A judge may write a book review for a legal textbook and may retain the reviewed book in their personal library.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(B); 100.4(D)(3); 100.4(H)(1); 100.4(H)(1)(a); 100.4(H)(2); Opinions 20-85; 19-101; 05-28; 97-133; 93-14.

Opinion:

         The publisher/editor of a legal textbook asked the inquiring full-time judge to review it and sent a complimentary copy of the textbook for this purpose. The judge expects the review will appear in a bar association journal later this year. The judge now asks if it is permissible to retain the reviewed book in the judge’s own personal library.

         A judge must uphold the judiciary’s integrity and independence (see 22 NYCRR 100.1), 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]). Further, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]). However, a judge may generally engage in extra-judicial activities such as writing, as long as doing so is not incompatible with judicial office and does 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 proper performance of the judge’s judicial duties (see 22 NCYRR 100.4[A][1]-[3]; 100.4[B]). While a full-time judge may not be an “active participant of any business entity” (22 NYCRR 100.4[D][3]), they may nonetheless “receive compensation and reimbursement of expenses for the extra-judicial activities permitted by this Part” (22 NYCRR 100.4[H][1]), subject to certain limitations. For example, the “source of such payments” must not “give the appearance of influencing the judge’s performance of judicial duties or otherwise give the appearance of impropriety” (id.) and the compensation must “not exceed a reasonable amount nor shall it exceed what a person who is not a judge would receive for the same activity” (22 NYCRR 100.4[H][1][a]). In addition, a full-time 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 and shall be filed as a public document in the office of the clerk of the court on which the judge serves or other office designated by law” (22 NYCRR 100.4[H][2]).

         It is well-settled that a judge may write and publish a book review, provided the judge does not authorize use of the review on the book jacket or elsewhere to promote sales of the book (see Opinions 20-85; 05-28; 97-133; 93-14). However, we have not previously addressed whether a judge may thereafter keep a complimentary copy of the book if provided by the author, editor, or publisher.

         We understand that authors and publishers commonly seek out experts in the field in which the book is published and offer them an advance copy of the book to be reviewed.¹ Moreover, it is customary in academic publishing that a book, once reviewed, becomes the property of the reviewer and is generally added to their personal library.

         As a full-time judge “may receive compensation” for permissible extra-judicial activities (22 NYCRR 100.4[H][1]), and this judge is being offered the standard compensation for book reviewers, i.e. the opportunity to retain a complimentary copy of the reviewed book, we believe it is permissible (see 22 NYCRR 100.4[H][1][a]). Accordingly, after reviewing the book, the judge may keep the book in their personal library.

         Given this conclusion, we need not address the judge’s alternative suggestion of donating the book to a law library.

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¹ Although less relevant here, we note they may also send complimentary copies to newspapers and other media to request that the book be reviewed or mentioned (see e.g. Opinion 19-101).