Digest:  (1) Judges may enter into contracts with a commercial legal publishing company to write on legal matters but 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. (2) A judge may not act as an instructor for a profit-making company which provides pre-law preparatory instructions for applicants for admission to law schools. However, the judge may become a limited partner in such a for-profit enterprise.
 

Rules:  22 NYCRR 100.2(C), 100.4(B),(D),(H);
             90-24 (Vol. V), 90-80 (Vol. V),
             90-157 (Vol. VI), 92-05 (Vol. IX),
             93-37 (Vol. XI), 94-19 (Vol. XII),
             94-57 (Vol. XII), 95-55 (Vol. XIII), 97-01.
 
 

Opinion:

            This opinion addresses multiple applications to the Committee which give rise to issues of extra-judicial activity by judges for which compensation is received. As the questions are somewhat intertwined, this opinion seeks to clarify the Committee's view on these matters.

            Inquiry 97-43 asks whether it is permissible for a full-time judge to provide consultation which is compensated in connection with a legal publication being prepared and written by a commercial publishing house. The judge is being asked to review the material for style and legal sufficiency. Similarly, inquiry 97-96 involves a contractual arrangement with a publisher where the judge would be a general editor and consultant.

            Inquiries 97-58 and 97-66 ask whether a judge may write civil practice commentaries for a publication dealing with New York Civil Practice, which is being published by a commercial law publisher. As authors, the judges would each be paid an agreed, lump sum certain for their work, and would also be designated as members of the editorial board.

            This Committee in various ways, has previously addressed issues arising from similar inquiries. However, since Part 100 of the Rules of the Chief Administrator of the Courts Governing Judicial Conduct has been revised effective January 1, 1996, the Committee believes a more comprehensive review and an updated statement addressing such issues are now appropriate.

            Section 100.4(B) of the Rules Governing Judicial Conduct provides: "A judge may speak, write, lecture, teach and participate in extra-judicial activities subject to the requirements of the this part." Subsequent paragraphs set forth both prohibited and permitted activities. All have a common thread permitting a judge to become involved in activities and organizations which, among other worthy goals, seek to improve the law, the legal system, and the administration of justice. Other qualifying provisions of section 100.4 state that a judge's financial activities and/or compensation must be of a kind not susceptible to a perception that the activity exploits the judge's judicial position, or involves a judge in businesses or attorney relationships which are likely to come before the Court, or which appear to influence the judge's performance of judicial duties, or which otherwise give the appearance of an impropriety See 22 NYCRR 100.4(D), (H).

            In particular, section 100.4(D)(3), provides that "A full-time judge shall not serve as an officer, director, manager, general partner, advisor, employee or other active participant of any business entity,,," Previously, the corresponding section of the Rule (former section 100.5[C][2]) specifically applied to an "advisory board member". Further, section 100.4(D)(2) of the revised Rules provides that a judge "may hold and manage investments of the judge and members of the judge's family, including real estate," and subparagraph (3)(b) allows a judge to manage and participate in a business entity engaged solely in investment of the financial resources of the judge or members of the judge's family.

            In light of the former and current language of section 100.4 and other equally important considerations, this Committee has in the past counseled judges both against and in favor of engaging in various activities. In Opinion 90-24 (Vol. V) the Committee said a full-time judge who presides over criminal cases may write commentaries for a publisher on criminal law matters. In Opinion 93-37 (Vol. XI), we advised that a full-time judge may earn a profit from the publication of a manual originally prepared by the judge for a judicial seminar on criminal procedure. The Committee has also held that a judge may accept employment as an adjunct law professor at a private university, and may accept compensation and benefits for teaching a regular course of study. Opinion 92-05 (Vol. IX).

            On the other hand, this Committee has advised judges against such occupational activities as teaching dance classes at a private for-profit performing arts studio, and accepting private employment at a gas station, security company, beach club, landscaping business, carpentry shop, and taxi company, all being organized for profit. See Opinions 94-19 (Vol. XII) and 95-55 (Vol. XIII). (A judge could, however, teach dance for a non-profit entity and be compensated. Opinion 94-57 [Vol. XII]). The rationale for such decisions is not that the activities were unrelated to the improvement of the law, the legal system and the administration of justice, but that the proposed employers are profit-making entities.

            In Opinions 90-80 (Vol. V), 90-157 (Vol. VI) and 97-01, the Committee advised that a judge should not serve on the editorial board for publishers of a law book or write the forward for a law publication because to do either, suggests the judge is promoting the book without contributing to its content in any significant way. Therefore, we concluded that the suggested involvement by judges might give the publication a misleading official imprimatur. The Committee recognizes the existence of a fine line between these opinions and the permissible act of drafting commentaries on issues of law and statutory construction. However, in the latter circumstance, the judge is identified as the author of the commentary, an activity permitted by 22 NYCRR 100.4(B).

            Given the facts briefly outlined by the inquiring judge in 97-43, the Committee believes that if a judge is identified in the publication in only a general way, the judge's function of reviewing a publication for "style and legal sufficiency" is proscribed by section 100.2(C) which prohibits judges from lending the "prestige of judicial office to advance the private interests of the judge or others..."

            As to inquiries 97-58 and 97-66, the Committee believes that a judge may draft commentaries for a law publication and be identified as the commentaries' author and be compensated for such work. However, it appears that the judges are also to be designated as members of the publication's editorial board. It is unclear from the materials submitted by the judges whether in such a capacity the judges' will be rendering advice and engaged in consultation about work other than that which has been written by them. Certainly, as authors, the judges are entitled and can understandably be required to advise and consult with the publisher about what they have written or intend to write. But they can not be involved in advising a commercial publisher as to other projects or publications or in promoting the work of others. Indeed, inquiry 97-96, discussed above, involves just such an arrangement and, in the Committee's opinion, is not permissible.

            In inquiry 96-143, a full-time judge has been invited to become an instructor for a for-profit company which provides pre-law preparatory tutorials, instructing, advising, and counseling to students/graduates about their law school applications. The judge also discloses an opportunity to buy into the company as a limited partner.

            Although it would appear that the end result of the enterprise is law related, the real function of this commercial organization is to profit from guiding people through the intricacies of law school admission tests, law school polices, and law school admission procedures. Promoting and advertising material, and even word of mouth comment, would violate section 100.4(D)(1)(a), because the judge's judicial position would inevitably be exploited by mentioning his/her name in connection with the school and in impliedly offering students the opportunity to pay for face-to-face contact with a judge before whom they might be practicing in the future.

            While it might likewise be argued that the judge's judicial position is being exploited when the judge writes commentaries for a for-profit publishing company - an activity which this opinion allows - that activity is generally only available in commercial settings, unlike teaching which ordinarily is done in a not-for-profit environment. Furthermore, from an historical perspective, judicial writing under the umbrella of a private company has always been tolerated. Finally, a judge is forbidden by section 100.4(D)(3), from being an "active participant" or "employee" of a commercial enterprise.

            With regard to investment as a limited partner, as stated above, section 100.4(D)(3) prohibits a full time judge from serving as an officer, director, manager, general partner, advisor, employee, or other active participant in a business entity. Since limited partnerships are not proscribed by this section, the inquiring judge may invest as a limited partner so long as all concerned are careful not to exploit the judge's judicial position, or use the judge's name in any promotional materials.

            The foregoing rationale does not conflict with Opinion 92-05 (Vol. IX) which permitted a judge to accept employment as an adjunct law professor at a private university, where the judge would receive standard compensation and benefits. Presumably, the university was an educational, not-for-profit institution. Thus the private university was not a commercial venture and the act of teaching law there adheres more closely to the thread which runs through this opinion, i.e., that the extra-judicial activity of judges, for which compensation is received, should be related to the improvement of the law, the legal system, and/or the administration of justice; or it should be limited to non-commercial ventures, or to personal and family matters, as specifically provided in the Rules.