Opinion 24-173
December 12, 2024
Digest: A judge may not write a foreword to a law book written by an attorney author and published by a bar association.
Rules: 22 NYCRR 100.2; 100.2(A), (C); 100.4(A)(1)–(3); 100.4(B); 100.4(C)(3)(b)(ii), (iv); Opinions 21-71; 15-229; 11-54; 05-28; 00-70; 97-133; 97-01; 96-143/97-43/97-58/97-66/97-96; 93-14; 90-157; 90-80.
Opinion:
A judge has been asked to provide a foreword to a law book written by an attorney and published by a bar association. The book focuses on practice and procedure in the specialized court where the judge presides. Proceeds from book sales go entirely to the bar association, and not the attorney author, although publication of the book may potentially enhance the attorney author’s professional reputation and status. The judge is aware of our precedent stating that a judge may not promote another author’s work, but asks whether the proposed foreword may be permissible because (a) any profits from book sales will go to a bar association rather than a commercial publisher and (b) any benefit to the attorney author would be intangible, such as enhancement to the author’s professional reputation.
A judge must always avoid even the appearance of impropriety and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). Thus, a judge may speak, write, lecture, teach and participate in extra-judicial activities, as long as such activities are compatible with judicial office and do not cast doubt on the judge’s capacity to act impartially, detract from the dignity of judicial office, or interfere with the judge’s judicial duties (see 22 NYCRR 100.4[A][1]-[3]; 100.4[B]). As relevant here, a judge also may not “lend the prestige of judicial office to advance the private interests of the judge or others” (22 NYCRR 100.2[C]).
We have advised that judges may not provide written testimonials or other statements for use in promoting the private interests of others. Thus, a judge may not give an accountant friend a quote for the inside leaf of a book about auditing for fraud, even if the judge’s judicial title is omitted, where the quote would be used “for marketing and sales purposes” (Opinion 11-54); may not permit a fiction book’s author or publisher to use any portion of the judge’s book review to “promote book sales” (Opinion 05-28); may not, after reviewing a criminal practice treatise, prepare a testimonial which would be included in a brochure used for “marketing purposes” (Opinion 97-133 [noting judge would be impermissibly involved in commercial and promotional aspects of marketing]); and may not author a quote about a book involving legal issues to be used on the book jacket “to promote book sales” (Opinion 93-14). In each instance, we concluded that the judge’s proposed involvement would impermissibly lend the prestige of judicial office to advance the private interests of another (see 22 NYCRR 100.2[C]). Thus, although judges may enter into contracts with a commercial legal publishing company to write on legal matters, we have said they “may not serve on the editorial board or as a consultant, advisor or editor if such service involves consultation and advice concerning the work of authors other than themselves” (Opinion 96-143/97-43/97-58/97-66/97-96; see also Opinions 90-157; 90-80).
Likewise, in Opinion 97-01, we said a judge may not write the foreword for a law publication which was a commercial endeavor intended to earn a profit for the publisher and author. We noted that, as with providing a book jacket quotation, there was a “clear and overt nexus between the writing that is sought and the private interests of the publisher and author” (id.). Therefore, we concluded that a foreword provided by the judge “could readily be perceived as endorsing” the book and give it a misleading official imprimatur (id. [noting heightened perception of judicial imprimatur where book’s subject is workings of inquirer’s own court]).
The Private Interests of the Author
Here, the attorney author is receiving no compensation from the book’s publication, but the publication may potentially benefit the author’s status in the legal community. In our view, any intangible benefit the book may have to the author’s reputation and status does not rise to the level of a “clear and overt nexus” between the writing and the private interests of the author (Opinion 97-01). We thus decline to expand our prior opinions, which discussed a direct, pecuniary advantage from the publication, to include any potential enhanced reputation and status the work may provide to the author.
The Private Interests of the Bar Association
While the book’s publication may not advance the author’s private interests within the meaning of our prior opinions, it directly benefits a third party, the bar association/publisher. In this regard, Rule 100.2(C) and our opinions do not distinguish between “commercial” and “non-commercial” publishers. Rather, the distinction is whether there is a “clear and overt nexus between the writing that is sought and the private interests of the publisher and author” (Opinion 97-01). Here, the purpose of having the judge contribute to the foreword is presumably to assist sales and/or increase membership to benefit the bar association; in other words, to advance the private interests of the bar association. While the Rules contemplate certain circumstances where a judge may assist in supporting bar associations, none of these exceptions apply here.[1]
In our view, contributing a foreword here can only be seen as promoting someone else’s book (see Opinion 97-01); it is thus distinguishable from contributing a substantive chapter to a book of case studies (see Opinion 21-71) or even contributing a recipe to a bar association’s cookbook (see Opinion 00-70 [concluding judge’s contribution of one recipe among many from other bench and bar members akin to non-monetary charitable donation]).
We thus conclude that the judge may not write a Foreword for the law book.
[1] A judge may be a speaker or guest of honor at a bar association’s fund-raising event, but may not otherwise permit the use of judicial prestige for fund-raising or membership solicitation (see 22 NYCRR 100.4[C][3][b][ii], [iv]; see also Opinion 15-229 [advising judge may be officer of bar association but may not personally participate in solicitation of funds or memberships, or in other fund-raising activities]).