2012-13 (June 1, 2012)
Advancing Private Interests; Advertising; Extrajudicial Activities; Off the Bench Conduct; Promotional Activities; Publishing; Speaking
Rules 1.2, 1.3, 2.10, 2.11, 3.1 & 3.11
 
Issues: May a Judicial Official cooperate with his/her publisher’s program of publicizing his/her book through standard channels, such as a publisher’s website, sending out review copies, arranging book signings, obtaining interviews and talks, provided that the Judicial Official does not get directly involved in financial transactions and retains control over promotional activities?

May a Judicial Official retain a professional promotional firm to supplement the publisher’s program of book promotion, provided that the Judicial Official does not get directly involved in financial transactions and retains control over promotional activities?

Applicable Rules: Rule 1.2 of Code of Judicial Conduct states that a judge “should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.  The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.”

Rule 1.3 of the Code states that a judge “shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.”

Rule 2.10 of the Code prohibits judges from making any public statement “that might reasonably be expected to affect the outcome or to impair the fairness of a matter pending or impending in any court or make any non-public statement that might substantially interfere with a fair trial or hearing.”

Rule 2.11 of the Code requires disqualification of a judge in “any proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to, the following circumstances… (4) The judge has made a public statement, other than in a court proceeding, judicial decision, or opinion that commits or appears to commit the judge to reach a particular result or rule in a particular way in the proceeding or controversy.”

Rule 3.1 of the Code concerns extrajudicial activities and sets forth general limitations on such activities, such as not using court premises, staff or resources, except for incidental use or for activities that concern the law, the legal system, or the administration of justice unless otherwise permitted by law and not participating in activities that (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification, (3) appear to a reasonable person to undermine the judge’s independence, integrity or impartiality, or (4) appear to a reasonable person to be coercive.

Rule 3.11 of the Code limits a judge from participating in business or financial transactions that will inter alia (1) interfere with the proper performance of judicial duties, (2) lead to frequent disqualification of the judge, (3) involve the judge in frequent or continuing transactions with attorneys or parties who are likely to come before the court on which the judge serves.

Response: Based upon the facts submitted, the Committee determines that the Judicial Official (a) may cooperate with his/her publisher’s program of publicizing his/her book through standard channels, such as a publisher’s website, sending out review copies, arranging book signings, obtaining interviews and talks, and (b) may retain a professional promotional firm to supplement the publisher’s program of book promotion, subject to the following conditions:

1. 1. the Judicial Official should not get directly involved in financial transactions that would interfere with the proper performance of judicial duties and should retain control over promotional activities (Rules 1.2, 1.3, 3.1 & 3.11);
2. 2. the Judicial Official may participate in book signings, provided they are not held at the courthouse or any location that would lend the prestige of office (Rule 1.2, 1.3 & 3.1);
3. 3. the Judicial Official should not use, or permit others to use, his/her judicial title or office or otherwise exploit the judicial position for promotional purposes. The Judicial Official’s title and experience as a judge may, however, be included in the author’s biography as long as the biographical sketch contains only factual statements intended to inform the reader of the judge’s qualifications and experience (Rule 1.3);
4. 4. the Judicial Official should retain the right to review and pre-approve the use of any biographical information about the Judicial Official used in connection with any promotion activity (Rule 1.3);
5. 5. With respect to participating in interviews and talks, the Judicial Official should follow the restrictions set forth in Informal Opinion JE 2008-25:
   1. a. the appearance does not interfere with the Judicial Official’s judicial duties (Rule 3.1.(1)),
   2. b. the Judicial Official does not give opinions which would cast doubt on the Judicial Official’s impartiality (Rule 3.1 (3)),
   3. c. the Judicial Official is careful not to express opinions or to present the topic in any way that would indicate that the Judicial Official has a predisposition with respect to particular cases (Rule 2.11(a)), and
   4. d. the Judicial Official’s presentation is factual and instructive about the procedures and parameters of the subject matter but does not include comments about any pending matters (Rule 2.10).