COMMITTEE ON CODES OF CONDUCT
ADVISORY OPINION NO. 55
Judicial Writings and Publications.
Two problems have been presented to the Committee involving the
interpretation of canons relating to judicial writings and publications:
(1) the propriety of a judge writing on cases which he or she has heard;
and (2) the extent of permissible advertising of the judge's publications.
It is difficult to prescribe precise guidelines on either problem.
(1) Provisions of Canons
Canon 4A provides that "subject to the proper performance of judicial
duties," a judge may "write . . . concerning the law, the legal system,
and the administration of justice." Under Canon 5A a judge may "write .
. . on non-legal subjects" if the writings "do not detract from the dignity
of the judge's office or interfere with the performance of the judge's
judicial duties."
With specific reference to public comments on pending cases, Canon
3A(6) provides that "[a] judge should avoid public comment on the merits
of a pending or impending action," but this proscription "does not extend
to public statement made in the course of the judge's official duties,
to the explanation of court procedures, or to a scholarly presentation
made for purposes of legal education."
Canon 5C(1) states that "[a] judge should refrain from financial
and business dealings that tend to reflect adversely on the judge's impartiality
[or] . . . exploit the judicial position." Canon 2B provides in part that
a judge "should not lend the prestige of the judicial office to advance
the private interests of others."
Canon 5C(8) states that "[i]nformation acquired by a judge in the
judge's judicial capacity should not be used or disclosed by the judge
in financial dealings or for any other purpose not related to the judge's
judicial duties."
Canon 6 provides that a judge may receive compensation for permitted
law-related and extra-judicial activities, so long as "the source of such
payments does not . . . give the appearance of impropriety," and the amount
of compensation does not "exceed what a person who is not a judge would
receive for the same activity."
(2) Commentary on Canons
Obviously under Canon 4A a judge is encouraged to write on subjects
relating to improving the law, the legal system, and the administration
of justice and under Canon 5A is permitted to write on non-legal subjects
where the judge's writings do not detract from the dignity of the office.
On the other hand, judges should avoid the exploitation of their judicial
position in the publication and advertisement of their writings.
A judge must also avoid quasi-judicial activities that are likely
to lead to disqualification. Nonetheless, a judge may write on a legal
issue, commending the present law or proposing legal reform, without compromising
the judge's capacity to decide impartially the issue on which he or she
has written. See Thode, Reporter's Notes to Code of Judicial
Conduct 74 (ABA 1973).
Finally, while the prohibitions contained in Canons 5C(1), 5C(8),
2B, and 6 do not refer specifically to judicial writings, they should be
considered by a judge in determining the propriety of writings for publication.
(3) Comments on Cases Judge Has Heard
Except as permitted by Canon 3A(6), a judge should not comment publicly
about any pending case. The Commentary to Canon 3A(6) makes clear that
"[t]he admonition against public comment . . . continues until completion
of the appellate process." However, references to cases the judge has decided
are permitted in writings subsequent to the final disposition of the cases.
In writings referring to specific cases which the judge has decided,
however, even after their final disposition, the judge should be particularly
careful to avoid possible exploitation of the judicial position. In any
reference to a criminal case the judge should consider also whether his
or her comments might afford a basis for collateral attack on the judgment.
In all cases the judge should avoid sensationalism and comments
which may result in confusion or misunderstanding of the judicial function
or detract from the dignity of the office. The judge should comply with
the language, intent, and spirit of the canons cited above.
(4) Advertising of Judge's Publications
With respect to advertising the writings and publications of a judge,
the judge should, as far as possible, make certain that the advertising
does not violate the language, spirit, or intent of Canons 2B, 5C, and
6. To that end, it would be advisable for a judge, in contracting for any
publication of his or her writings, to retain a measure of control over
the advertising (including the right to veto inappropriate advertising),
so that it does not exploit the judicial position or use the prestige of
the judge's office to advance the private interests of others.
October 3, 1977
Revised January 16, 1998