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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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