Opinion 90-157

December 11, 1990

Digest:         Judges should not serve on the editorial board for the publisher of a law book, under circumstances that give the publication a misleading official imprimatur.

Rules:          22 NYCRR 100.2(c); 100.5(c)(1), (2) and (6); Code of Judicial Conduct, Canon 2.

Opinion:

         On June 7, 1990, this Committee issued Opinion 90-80, holding that it would be inappropriate for sitting judges to enter into a contract €or pay with a legal publisher and to act as an editorial board for the purpose of preparing a three-volume publication and yearly supplement for use by New York attorneys as a guide on jury instructions. After the opinion was rendered, the contract was amended to overcome the objections outlined in the opinion. The revised contract was resubmitted to the Committee for its reconsideration and redetermination.

         With a board composed largely of judges, and materials prepared essentially by the publisher, the judges serving on the board would tend to give an official imprimatur to a commercial activity for the purpose of selling the book. The new Model Code of Judicial Conduct, Canon 2, commentary, p. 8, states, “In contracts for publication of a judge’s writing, the judge should retain control over the advertising to avoid exploitation of the judge’s office.”

         Although the original opinion may have conveyed the impression that revisions to the Contract would remedy the ethical prohibitions, it was the Advisory Committee’s intention to impart, even in the presence of possible laudable and significant results, that the participation of judges in this undertaking would give the appearance of judicial impropriety (22 NYCRR 100.2). Significantly, the relinquishment by the judges, to the publisher, of control over the use of their names and titles for the purpose of advertising and promoting the published work raises the possibility of such uses being held in derogation of the Canons of Judicial Ethics, even if not directly done by the judges themselves. The efficacy of judicial impropriety for a given act is not strained of its impurities because it is performed by another in the judge’'s name (See Opinion 88-89, Vol II).

         The agreement also raises the inference that the Board of Editors, which would act as an independent contractor (paragraph 14), is engaged in a business, as business decisions will have to be made by such board as required by paragraphs 11(c) and 14 of the proposed agreement. This activity would violate the provisions of 22 NYCRR 100.5(c)(1),(2), and (6).

         Also prevalent throughout the agreement is the preservation of the publisher’s right to use the names and titles of the judges in all of the publications and advertisements of the work, a use which may be perceived by the public as an attempt to influence consumers into believing that as users of the material, they may obtain some special advantage.

         Accordingly, these judges should not participate in this project.