Connecticut
Committee on Judicial Ethics
Informal Opinion Summaries
2014-11 (July 15, 2014)
Extrajudicial Activities; Off the Bench Conduct;
Prestige of Office; Disclosure/Disqualification;
Compensation and Reporting
Rules 1.2, 1.3, 2.10,
2.11, 3.1, 3.11, 3.12 and 3.15
Issues: May a Judicial Official serve as the editor
of a legal treatise for which the Judicial Official
will be compensated?
Additional Facts: The Judicial Official will
be responsible for obtaining judges and attorneys to
draft various chapters of the treatise, which judges
and attorneys will not be compensated. The treatise
is intended to be an objective statement of what the
law is with respect to the subject matters covered.
The publisher is a commercial business. The
Judicial Official is not an appellate level judge
and is not currently assigned to sit (and for
several years has not sat) on cases involving the
subject matter of the treatise. The judges who
are contacted about writing a chapter will not be,
at the time of the request, ones that the inquiring
Judicial Official has any supervisory authority over
and the attorneys that are contacted will not be
ones that have recently appeared or are likely to
appear in the foreseeable future before the Judicial
Official.
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, (4) appear to a reasonable
person to be coercive, or (5) make use of court
premises, staff, stationery, equipment or other
resources, except for incidental use or for
activities that concern the law, the legal system,
or the administration of justice, or unless such
additional use is permitted by law.
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.
Rule 3.12 of the Code allows a judge to accept
reasonable compensation for extrajudicial activities
permitted by law unless acceptance of the
compensation would appear to a reasonable person to
undermine the judge’s independence, integrity, or
impartiality.
Rule
3.15 of the Code states that a judge shall publicly
report the amount or value of compensation received
for extrajudicial activities permitted by Rule 3.12.
Response: Based
upon the facts submitted, the Committee unanimously
determined that the Judicial Official may edit the
treatise, contact judges and attorneys about writing
various chapters of the treatise and accept
compensation for doing so, subject to the following
conditions:
1. The Judicial Official may 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 a biography as long as the biographical sketch
contains only factual statements intended to inform
the reader of the judge’s qualifications and
experience (see Rule 1.3);
2. The Judicial Official should retain the right to
review and pre-approve the use of any biographical
information about the Judicial Official in
connection with the sale or publicity of the
treatise (see Rule 1.3);
3. The Judicial Official should ensure that he or she does
not make any statements about pending or impending
cases in any section authored by the Judicial
Official and that the treatise does not otherwise
attribute to the Judicial Official comments about
any pending or impending matters (see Rule 2.10);
4. The Judicial Official should
not make use of court premises, staff, stationery,
equipment or other resources, except for incidental
use or as provided in Rule 3.1(5);
5. The Judicial Official should ensure that the
treatise does not contain content which would cast
doubt on the Judicial Official’s impartiality or
otherwise reflect any predisposition in particular
cases (see Rules 2.11(a), 3.1(3));
6. The Judicial Official’s compensation is reasonable
and commensurate with the work performed (see Rule
3.12);
7. The Judicial Official reports the compensation (see Rule 3.15); and
8. If an attorney that the Judicial Official contacted
appears before the Judicial Official within a
reasonable period of time following the Judicial
Official contacting the attorney about writing a
chapter of the treatise, the Judicial Official shall
disclose the information to the parties to the
proceeding. Thereafter, if a motion to
disqualify is filed, the Judicial Official will need
to determine, based upon the information provided in
the motion and accompanying affidavit (as provided
for in Connecticut Practice Book § 1-23), as well as
the particular circumstances of the case, whether
the Judicial Official should recuse him or
herself.
In reaching its opinion, the Committee considered an
article entitled “The Judge as Author” by Cynthia
Gray, as well as
JE 2012-13 (approving a Judicial Official’s
cooperation with a publisher’s program of
publicizing the Judicial Official’s book subject to
various conditions similar to those set forth in
this matter).
Committee on Judicial Ethics
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