- A judge who learns that a law firm’s website advertises its experience appearing before particular judges and includes those judges’ biographies on pages that include the firm’s logo, trade dress, and links to its promotional materials must request in writing that the firm take the pages down and remove the links. The judge is not required to report the firm to a grievance committee, but reporting is within their discretion. New York Opinion 2023-25.
- In deciding a lawyer’s motion to withdraw from representing a litigant in a case, a judge should not require the lawyer to reveal confidential information protected under the rules of professional conduct except to the extent reasonably necessary to adjudicate the motion. Michigan Opinion JI-154 (2023).
- At the request of a government entity, private interest group, bar association, or other outside entity, presiding judges or other judicial officers with supervisory responsibilities may circulate to other judges information related to the law, the legal system, and the administration of justice but must ensure that any court-wide communication does not undermine the integrity or impartiality of the judiciary, suggest that any outside entity is in a position of special influence, lend judicial prestige to advance pecuniary or personal interests, engage in partisan politics, or relate to a specific pending or impending matter. Whether a particular communication is permissible depends on the nature, tone, and circumstances under which it is sent. A communication is more likely to be permissible the more it relates to operational or administrative issues, rather than substantive policy. A presiding judge may forward a memorandum from the sheriff’s office advising the court that an anticipated protest may impact security, traffic, or parking around the courthouse. A presiding judge may not forward a newspaper editorial by a criminal defense association in favor of lighter sentences for drug-related crimes. A presiding judge should not circulate an advertisement for goods or services for sale, even if it relates to the law, the legal system, or the administration of justice. A presiding judge should not circulate a flyer for a fundraiser to benefit a school or charitable organization. A presiding judge may circulate information about bar association events even if there are admittance fees to cover the cost of meals but must not add commentary that may be interpreted as coercive or imply that attendance is required to be in the presiding judges’ favor, particularly when the emails will reach subordinate judicial officers and staff. A presiding judge may disseminate information relating to legislation directly impacting the courts and a neutral update on legislation affecting court budgets. A presiding judge may not use the court email system to engage in partisan politics or disseminate a position paper from an outside entity espousing a political view on a substantive policy issue. A presiding judge may not circulate a news article about a specific juvenile matter pending before the court. California Supreme Committee Formal Opinion 2023-22.
- A judge is not per se disqualified when a litigant appearing before them is employed by the same government department that employs the judge’s child, but the judge should conduct a subjective analysis of their impartiality by consulting their “own emotions and conscience.” If they conclude that they can hear the case impartially, the judge should then use a fact-intensive assessment and objective standard to consider whether their impartiality may reasonably be questioned by a fully informed, disinterested observer, considering whether the department’s interests are likely to be affected by the proceeding, and, if so, to what degree; whether their child’s interests are likely to be affected by the proceeding, and, if so, to what degree; whether they know any party to the proceeding by virtue of the party’s relationship or association with their child and, if so, the nature of that relationship or association; whether the judge is independently aware of any information that would be relevant to the proceeding as a result of their associations with the department; and whether any party to the proceeding has direct or indirect supervisory authority over their child. Massachusetts Opinion 2023-1.
- A judge should not lead a running program created for felony drug court participants. Washington Opinion 2023-3.
- A judge may be the keynote speaker for a non-partisan victims’ rights event presented by the state attorney’s office, police departments, the county sheriff, and a victims’ shelter if the judge does not give legal advice or make comments about pending matters and their presentation is dignified, with no suggestion of bias. Florida Opinion 2023-3.
- Absent unusual circumstances, a judge may attend the local bar association’s annual “dinner with the judges,” promoted as an opportunity for members of the bar and judges to gather socially, even if part of the cost is defrayed by law firms and businesses that support and do business with lawyers. Maryland Opinion Request 2023-9.
- A judge who is on the board of directors of a non-profit organization does not have an affirmative duty to stop other board members from referring to them as “judge” during meetings and in the community but should ensure that other board members do not use their title to, for example, recruit members or solicit contributions for the organization. As long as they do not solicit donations, speak, or hold themself out as a judge, a judge may participate in fundraisers for the organization, including donating to them, purchasing dinners and tables for dinners, bidding on auction items, golfing, and assisting in the behind-the-scenes planning. A judge should ensure that any raffle at a fundraising event is conducted in conformity with applicable laws but may purchase tickets for any appropriate raffle. A judge should have her name, photograph, and quote removed from the organization’s website. Nebraska Opinion 2023-1.
- A judge may serve as co-chair of a non-profit social services organization if their court does not make referrals to the organization. A judge may not serve on a bar association committee on corrections and community re-entry. New York Opinion 2022-187.
- A judge who is an officer of a magistrates association may invite prosecutors, defense counsel, probation, law enforcement, and county agencies to attend and speak at monthly meetings if no pending or impending matters are discussed and the speakers are excluded from any portion of the meeting when association business is discussed. New York Opinion 2023-3.
- A new judge may continue to be a life member of the National Rifle Association. New York Opinion 2023-6.
- A judge may create and participate in a series of non-commercial podcasts to highlight individuals whose accomplishments have had an inspirational and positive impact on the community, subject to generally applicable limitations on judicial speech and conduct but should not refer to their judicial status in connection with the podcasts. New York Opinion 2023-1.
- A judge who is the editor of a legal manual used by judges, court personnel, defense attorneys, prosecutors, law enforcement, and others may dedicate the manual to “hard-working individuals that uphold our Criminal Justice System.” New York Opinion 2023-9.
- A judge may not request that federal and state legislators protect the power grids from electromagnetic nuclear attack. New York Opinion 2023-15.
- Subject to the approval of the administrative director of the courts, a magistrate may start a limited liability company to sell items household items, pet supplies, and electronics through Amazon. West Virginia Opinion 2023-8.
Category Archives: Advisory opinions
A sampling of recent judicial ethics advisory opinions
- A court may participate in a not-for-profit organization’s program that, following finalization of an adoption, provides a personalized backpack with the organization’s name and logo to adoptees and a tote bag with its name and logo to adoptive parents. New York Opinion 2022-175.
- A judge may not sign a letter soliciting local businesses to donate items for use as program rewards and incentives for participants in a specialized docket court and may not direct a court employee to do so. Ohio Opinion 2023-1.
- A judge who issued a bench warrant for failure to appear is not disqualified from the underlying matter or a separate, subsequent matter in which the defendant is charged with failure to appear. A judge who accepted a plea agreement is not disqualified from a subsequent case in which the crime that was the subject of the agreement is alleged as a prior strike, which the defendant intends to challenge. California Formal Opinion 2023-21.
- A judge who filed an insurance claim following Hurricane Michael should disclose the claim to all parties or their attorneys with hurricane-related insurance claims in their division and recuse themselves from any cases involving the same insurance company. Florida Opinion 2023-1.
- If a former magistrate appears in a case, other magistrates are not required to disqualify themselves, but a magistrate should disclose if they have a close friendship with the former magistrate. Florida Opinion 2023-2.
- An appellate judge who successfully sought to vacate a vexatious lien filed by a disgruntled litigant against their property may preside over appeals from other decisions or orders by the judge who granted their petition. New York Opinion 2022-173.
- A judicial officer may not permit a court employee to manage the city’s jail alternative programs but may allow a court employee to oversee management of courthouse security. Washington Opinion 2023-1.
- A judge who serves as a mentor at a law school may not write a letter of recommendation in support of a mentee student’s application for permanent residence in the U.S. unless the request comes directly from the government agency. New York Opinion 2022-178.
- A judge may not provide a recommendation in support of an individual nominated by the governor to be secretary of an executive branch agency. Maryland Opinion Request 2023-5.
- A judge may speak without compensation on aspects of the judge’s life and career related to diversity and inclusion at a for-profit company’s employee-only event in recognition of Black History Month and International Women’s Day if the company’s interests are unlikely to come before the judge and the judge’s name and image would not be used for commercial purposes. New York Opinion 2022-158.
- A judge may participate, without compensation, in an interview for a documentary about the life and career of a now-deceased judge who was their mentor. New York Opinion 2022-159.
- A judge may sell copies of a bench book they independently wrote and published to the supervising judge of another court in the court system for distribution to judges in that court. New York Opinion 2022-163.
- A judicial official may prepare a video testimonial for a personal friend and a former elected executive branch official who is receiving the 2023 Distinguished Public Service Award from the Connecticut Bar Association that will be shown at its “Celebrate with the Stars” annual fund-raising event if their remarks will focus on the recipient as a person and advocate for non-partisan civics education and engagement, rather than on legislative achievements; if they do not participate in fund-raising except as permitted; if their presence and role in the presentation are not advertised prior to the event, although their name, title, and biography may be included in materials distributed at the event; and if their testimonial is not made publicly available on the bar association’s YouTube channel or any other online media after the event. Connecticut Informal Opinion 2023-1.
- A judge may purchase a sponsor-level ticket to a bar association’s fund-raising dinner and be listed as a “sponsor” of the event. New York Opinion 2022-161.
- A judge in their capacity as a past president of the Oklahoma Bar Association may serve on a shortterm search committee for a new executive director of the Association. Oklahoma Opinion 2022-1.
- A judge may not serve on the U.S. Court of Military Commission Review. Virginia Opinion 2022-2.
- A judge may serve on a scholarship committee through the local library. West Virginia Opinion 2023-2.
- A judge who has authorized or knowingly permitted their name to appear on a publicly circulated nominating petition as a candidate for nonjudicial office must resign from judicial office. New York Opinion 2022-176.
A sampling of recent judicial ethics advisory opinions
- A judge may not employ their spouse as their judicial assistant. Florida Advisory Opinion 2022-12.
- A judge is not disqualified from cases involving a subject that is the same as or similar to a subject involved in a criminal case in which their spouse is representing the defendant. Colorado Advisory Opinion 2022-6.
- An appellate jurist who has a personal residential tax appeal pending before the tax appeals session should disqualify themself from all matters appealed from the tax appeals session. Connecticut Informal Advisory Opinion 2022-6.
- A judge may teach a law school clinic that will draft legislation to create civil liability for encouraging, assisting, or facilitating racially motivated crimes and propose the legislation to legislators. New York Advisory Opinion 2022-97.
- A judge may speak in a free, virtual seminar for law students entitled “Diverse Pathways: Exploring Avenues to a Meaningful Legal Career,” presented by a statewide law firm, and the firm may advertise the judge’s participation. Florida Advisory Opinion 2022-11.
- A judge should not attend a training course regarding speed detection devices that is offered by a law enforcement agency and open only to judicial officers, prosecutors, and members of law enforcement. Ohio Advisory Opinion 2022-8.
- A magistrate may serve as a trustee of a condominium association but may not engage in the resolution of disputes between residents and should not use their position or title in connection with service on the board. Ohio Advisory Opinion 2022-10.
- A supreme court justice who is chair of a church council may inform other council members and inquiring church members about the procedure for disaffiliation from the national church organization. South Carolina Advisory Opinion 14-2022.
- A judge may serve as a member of the board of directors on the long-range planning committee of a not-for-profit hospital when the committee is not involved in fundraising and the hospital is rarely, if ever, a party to litigation in the judge’s court. Florida Advisory Opinion 2022-13.
- Judges may not perform as actors and play judges or mediators presiding over fictional disputes on a television show. Alabama Advisory Opinion 2022-950.
- If character testimony is being a sought, absent a subpoena, a judicial officer may not at the request of a criminal defendant’s attorney submit a declaration in a habeas corpus action regarding their prior representation of the defendant. If the judicial officer has any question regarding whether the testimony may be construed as character testimony, they should err on the side of requiring a subpoena. Even if the declaration only contains factual testimony, the judicial officer is advised to require a subpoena. California Expedited Opinion 2022-49.
- A judge may maintain a profile on a dating website and communicate online for the purpose of dating. New York Advisory Opinion 2022-119.
- A judge may have a LinkedIn profile page that identifies them as a judicial officer and identifies the court on which they serve and may be pictured in robes in their profile picture as long as the photo is taken in an appropriate setting, for example, a courtroom or chambers. Colorado Advisory Opinion 2022-5.
- A full-time or part-time magistrate may not seek election to, or serve on, a local, city, or state board of education, city council, or county board of commissioners. Ohio Advisory Opinion 2022-9.
- A judge or a judicial candidate may be a member of the committee planning the strategies for their own campaign for judicial office but may not be a member of a committee that primarily solicits and accepts campaign contributions, and the committees must be separate, and the distinction clearly delineated. Michigan Advisory Opinion JI-152 (2022).
- A judicial candidate or their campaign committee may post photographs on social media of the candidate with sitting judges at a public or professional event, such as a bar association function, if the judges consent, there is nothing that indicates an endorsement, and a caption makes clear that the judges do not endorse the candidate. New York Advisory Opinion 2022-96.
A sampling of recent judicial ethics advisory opinions
- A judge may not appoint their personal financial manager to a fiduciary position. New York Opinion 2022-59.
- A judge who volunteers as a coach for a youth sports team is not required to disqualify when an attorney whose child is on the team appears in a case unless there are other facts that would cause a person to doubt their ability to be impartial, but the judge must disclose on the record information reasonably relevant to their decision not to disqualify. California Formal Opinion 2022-19.
- A judge may not perform work on an amicus brief that will be filed by the bar association in a high-profile federal appeal. New York Opinion 2022-91.
- To determine whether to report a gift and, if so, what value to list, a judge should use reasonable diligence to determine its value, for example, asking a bar association the value of a commissioned portrait and crystal gavel given to the judge or contacting an establishment that sells the item or similar items. Florida Opinion 2022-6.
- A judge who is considering leaving judicial service may apply for jobs while still holding office, but if the judge applies for employment with a party or a law firm appearing before the judge, recusal will likely be necessary. If the judge accepts employment with a law firm, the judge may not authorize the firm to advertise their anticipated post-judicial employment at the firm. Florida Opinion 2022-7.
- A judge may not serve on a state education department committee that will address how local school districts report student/school-related conduct, communication, and disciplinary matters to the department. Florida Opinion 2022-10.
- A judge may participate in a group organized by the governor’s office and the Department of Motor Vehicles to propose simpler language and more logical organization for the traffic laws if the membership is balanced with subject experts from relevant state agencies, non-profit organizations, prosecutors, and defense counsel. The judge may be reimbursed for travel and lodging expenses reasonably incurred for their participation but may not be compensated. New York Opinion 2022-89.
- A judge may write a children’s book about what judges do and what it takes to become a judge, emphasizing that children who are members of minority groups can grow up to become judges. As long as they do not comment on pending cases or legal controversies or give legal advice, and the activities do not conflict with their professional schedule, the judge (1) may give public readings of the book at schools, community centers, and similar institutions, but may not wear a judge’s robe when doing so, (2) may give public readings in conjunction with a “lawyers for literacy” program but may not solicit lawyers to purchase the book or solicit invitations to such events, and (3) may promote the book through media outlets such as radio and be identified as a sitting judge and discuss the role of a judge. Florida Opinion 2022-9.
- A judge may give a historical presentation to a church on a U.S. Supreme Court decision about abortion and discuss the majority, concurring, and dissenting opinions on the possible ramifications of the case, but may not offer any personal views. Maryland Opinion Request 2022-24.
- A judge may create and fully fund scholarships at their former elementary school and college. A judge may volunteer with foster youth through a city agency unless their protégé is or becomes involved in court proceedings. New York Opinion 2022-55.
- A judge may serve on the steering committee of a not-for-profit cultural/religious organization associated with a college and donate at least $1,000 a year as required; may permit their name to be listed on the organization’s regular letterhead, including the title “Honorable,” even if the letterhead might be used for fund-raising events if comparable designations are listed for other committee member; and may permit their name to be listed on an invitation to a fund-raiser unless the formatting reasonably creates an impression that the committee members collectively and/or the judge individually are personally soliciting funds or personally inviting people to the fund-raiser. New York Opinion 2022-73.
- A judge must object in writing to the use of their name on a flyer announcing a not-for-profit civic organization’s fund-raiser and advise the organization to remove or omit their name from any further promotions. After objecting, the judge may attend the event, be recognized as one of the inductees during the ceremony, and buy a table for friends and family to attend. New York Opinion 2022-84.
- A judge makes referrals to a not-for-profit entity while presiding in a problem-solving court may not accept complimentary tickets to the entity’s lavish fund-raising gala, but may purchase tickets and attend the event. New York Opinion 2022-72.
- The judge members of a bench-bar committee should not have their names on advertisements for CLE programs held by the committee to raise funds for charitable organizations, should not be involved in the selection of the charities that will receive the donations, and should not hand a check to the charities. West Virginia Opinion 2022-23.
- A judge may meet with a commercial television producer and their creative team to discuss a possible television show involving the criminal justice system even if the meeting could result in an employment offer or business opportunity that the judge cannot begin without resigning. New York Opinion 2022-99.
- A judge may not appear as a judge on a cable TV show similar to Judge Judy. West Virginia Opinion 2022-21.
- A new judge may submit vouchers for legal fees earned for work performed as assigned counsel prior to assuming the bench. New York Opinion 2022-86.
- A judicial candidate who learns that their political party is circulating petitions naming them as a candidate for a non-judicial office must request in writing that the party immediately stop and advise that, if elected, they will decline to serve. New York Opinion 2022-61.
Reviews, blurbs, and prefaces
Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.
For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review. California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests. To “harmoniz[e]” those provisions, it explained:
Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . . While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons. Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.
The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”
Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication. It explained:
Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale. An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales. When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.
Other opinions reflect a similar distinction.
- A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket. California Judges Association Advisory Opinion 65 (2012).
- A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization. Connecticut Informal Advisory Opinion 2010-35.
- A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements. Florida Advisory Opinion 2021-17.
- A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review. Illinois Advisory Opinion 1994-15.
- A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews. Kansas Advisory Opinion 186 (2020).
- A judge may write a review of several books on methamphetamine addiction. Nevada Advisory Opinion JE2008-8.
- A judge may review a legal textbook and retain the reviewed book in their personal library. New York Advisory Opinion 2021-117.
- A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales. New York Advisory Opinion 2020-85.
- A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used. New York Advisory Opinion 2012-26.
- A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book. New York Advisory Opinion 2011-54.
- A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale. New York Advisory Opinion 2006-114.
- A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions. New York Advisory Opinion 2005-28.
- A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket. New York Advisory Opinion 1997-133.
- A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere. New York Advisory Opinion 1993-14.
- A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales. Pennsylvania Informal Advisory Opinion 11/4/03.
- A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters. Texas Advisory Opinion 192 (1996).
- A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office. U.S. Advisory Opinion 114 (2014).
Prefaces
With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.
In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used. See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.” Maryland Advisory Opinion Request 1980-7.
Some of the opinions warn the judge that a foreword they write should not identify them as a judge. See Florida Advisory Opinion 2020-11. Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office. See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. Other opinions do not address the issue.
Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses. Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. See also Ohio Advisory Opinion 1987-8. Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions. Massachusetts Advisory Opinion 1993-2.
The opinions state:
- A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.” Connecticut Advisory Opinion 2010-15.
- A judge may write the foreword to a self-published memoir written by a family member. Florida Advisory Opinion 2020-11.
- A judge may write the preface to a book about the history of the county. Florida Advisory Opinion 1977-5.
- A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities. Maryland Advisory Opinion Request 2013-26.
- A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals. Maryland Advisory Opinion Request 1980-7.
- A probate and family court judge may write a foreword for a book on divorce. Massachusetts Advisory Opinion 1993-2.
- A judge may write a foreword for a book on the bicentennial of the U.S. Constitution. Ohio Advisory Opinion 1987–8.
- A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials. U.S. Advisory Opinion 114 (2014).
The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author. New York Advisory Opinion 1997-1. The committee reasoned:
[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author. For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval. Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.
Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.
A sampling of recent judicial ethics advisory opinions
- A judge who has applied for and/or is negotiating for post-judicial employment must disqualify from any matter in which the prospective employer appears; that disqualification cannot be waived. A judge should not negotiate with a potential employer if such negotiations would lead to frequent disqualification. If a negotiation does not result in employment, the judge should continue to recuse for a reasonable period, the length of which will depend on whether the judge developed a personal bias or prejudice during the negotiations and on factors such as how long the negotiations took, the notoriety of the negotiations, and whether the break-off of the negotiations was amicable. Arizona Opinion 2022-1.
- A judge who previously served on a town’s zoning board is disqualified from all matters that were pending before the board during their tenure but may preside over other matters involving the board. New York Opinion 2022-51.
- A judge is not disqualified because an attorney in a matter is their neighbor and had, in that capacity, supported a non-controversial residential zoning variance sought by the judge. New York Opinion 2022-42.
- A presiding judge may participate in an informal task force that will look at issues of racial bias in their community if their involvement can be limited to matters regarding the court system and the administration of justice and if the task force initiatives will not involve judicial proceedings that would ordinarily come before the court. A family law commissioner may participate in a domestic violence task force created by the court that includes the district attorney’s office, the public defender’s office, county counsel, probation, and local law enforcement agencies. A judge may serve on the executive committee of a city task force about reducing youth and gang violence that has members from a large cross-section of the community, including community leaders, educators, health workers, law enforcement, and youth programs. A judge may serve on a mayor’s gang task force that will allow all of the stakeholders in the criminal justice system, including law enforcement, prosecutors, members of the defense bar, the probation department and representatives from community-based gang intervention programs, to exchange ideas and offer suggestions. A judge may not serve on a mayor’s gang task force if it is oriented to intervention, prevention, and enforcement and is made up of political representatives, representatives from the district attorney’s office, the police department, schools, and other community leaders but does not include members of the defense bar. A judge who has a criminal law assignment may not join a state task force called the “Sober Driving Coalition” comprised of members of the highway patrol, local law enforcement, and probation. California Judges Association Formal Opinion 80 (2022).
- An administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief supporting the court system’s legislative agenda. New York Opinion 2022-37.
- In a letter on judicial stationery, a judge may ask the county clerk to authenticate any lien/judgment against the judge prior to recording it because a self-identified “sovereign citizen” is apparently retaliating against the judge. New York Opinion 2022-46.
- A judicial officer may review legal education books in a legal publication when the primary purpose is educational discourse related to the law, the legal system, or the administration of justice. A judicial officer may not provide an endorsement referencing their title to be used on the cover of a book written by others because the primary purpose of such an endorsement is to market or promote the book. California Opinion 2022-48.
- A judicial official may write an occasional column for an online newspaper to educate the public on how the legal system works, how judges make decisions, and the law generally if the content will be apolitical and uncontroversial and the paper is not-for-profit and non-partisan. Connecticut Informal Opinion 2022-04.
- A judicial officer may be a member of a judicial organization that has resolved not to hold conferences and other activities in states that discriminate against members of the LGBTQ+ community and may remain a member of a national organization that does not discriminate against members of the LGBTQ+ community but that conducts conferences in states that have enacted laws that discriminate. California Judges Association Formal Opinion 79 (2022).
- A judge may serve as a trustee for a public community college if they volunteered or were appointed as a trustee, but they may not run for the office even if the position is apolitical or nonpartisan. Colorado Opinion 2022-3.
- A judge may chair the board of directors of a local YMCA, and their name and position may be listed with other board members on the organization’s website and fund-raising invitations, unless the formatting creates the impression that the directors, collectively and/or individually, are personally soliciting funds. New York Opinion 2022-25.
- A judge may serve as master of ceremonies at a retirement picnic for the minister of their house of worship if the event is not a fund-raiser even if the congregants organizing the event hope to defray the costs by, for example, asking for donations online and/or at the function and selling advertisements for a program that will be distributed at the picnic. New York Opinion 2022-57.
- A judge may not perform in a rock band’s annual benefit concert even if their name and judicial status will be omitted from advertisements and may not sell concert tickets to friends, but may sell to family members. New York Opinion 2022-79.
- Subject to generally applicable limitations on judicial speech and conduct, a judge may speak at a free community celebration of Pride month if the event is not a fund-raiser and may permit the organization to use the judge’s photo and title in social media promotions. New York Opinion 2022-75.
Pride
2 recent judicial ethics advisory opinions addressed judges’ participation in Pride month events. As noted by the New York Judicial Ethics Advisory Committee, “Pride month typically celebrates a wide range of sexual and gender identities and gender expressions, often including lesbian, gay, bisexual, transgender, queer, intersex, and asexual identities (LGBTQIA+).” New York Advisory Opinion 2022-75.
The New York committee stated that a judge may speak at a free community celebration of Pride month when the event is not a fund-raiser and subject to generally applicable limitations on speech and conduct. A non-profit organization had invited the inquiring judge to speak about the judge’s experience as a member of a minority group. The committee explained that, “in general, judges may publicly discuss their professional and personal background and experience.” The committee cited previous opinions allowing a judge to speak at a foreign consulate about becoming the first judge of a particular gender and ethnicity in a specific judicial district (New York Advisory Opinion 2015-133) and to speak about their background and experience in becoming a judge at schools and places of worship affiliated with a certain religion (New York Advisory Opinion 2017-12). The opinion reiterated that sharing “their experiences as a judge and as a member of a particular minority group at a non-fund-raising community event hosted by a not-for-profit organization . . . ‘is clearly compatible with judicial office, and unlikely to cast reasonable doubt on the judge’s impartiality, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties.’” The committee also noted that “’a judge need not conceal his/her judicial status when engaging in permissible extra-judicial activities’” and added that the judge may allow the organization to use their photo and title in social media promotions for the event.
The Colorado Judicial Ethics Advisory Board stated that a judge, subject to several conditions, may attend and watch the Denver PrideFest festival and parade and may march in the parade with a bar association such as the Colorado LGBT Bar Association. Colorado Advisory Opinion 2022-1. The committee noted its advice also applied to similar events such as Cinco de Mayo, the Marade, and Juneteenth.
“Denver PrideFest is promoted as a ‘celebration of community and culture that is welcoming, inclusive and fun to all attendees, regardless of sexual orientation or gender identity.’ The two-day festival celebrates ‘the heritage and culture of the LGBTQ+ community in Colorado’ and draws more than 450,000 participants.”
The committee concluded: “Because PrideFest is a community festival intended to promote inclusivity, equal rights, and equal application of the law, there is no concern that a judge’s participation in the event would undermine the public’s confidence in the judiciary or give the appearance of impropriety or bias.” In support of its conclusion, the committee cited advisory opinions from other states allowing judges to participate in community parades in general (Ohio Advisory Opinion 2017-8), to serve as the grand marshal of a city’s ethnic day parade (Connecticut Informal Opinion 2015-18), to serve as the grand marshal of a St. Patrick’s Day parade (New York Advisory Opinion 2004-144), and to participate in and attend events sponsored by Gay and Lesbian Activist Defenders (Massachusetts Advisory Opinion 1995-8).
As it has for other public events, the committee reminded the judge to continue “to evaluate whether participation is appropriate leading up to and during the event” and not to identify as a judge while participating. Noting that “although PrideFest is intended to be non-partisan, political candidates tend to participate to show their support for the LGBTQ+ community,” the committee cautioned the judge to “take care not to appear with any political candidates or give the impression that the judge is endorsing a candidate or political organization.”
The committee also advised that a judge “may march in the parade with the LGBT Bar Association as long as the judge’s participation is not construed as an endorsement of a particular political organization but rather as a general celebration of PrideFest’s promotion of diversity, inclusion, and community.” Although the inquiring judge did not intend to identify as a judge during the parade, the committee noted that, “given its small membership, it is likely that the LGBT Bar Association will know the requesting judge is a judicial official,” and, therefore, the judge should be careful not to abuse the prestige of judicial official or allow the LGBT Bar Association to do so.
The committee reiterated its prior advice that, in evaluating whether to participate in public events such as parades, festivals, and other celebrations, a judge should consider whether:
- Participation will cause or likely cause a violation of the law, for example, by violating a curfew;
- Participation will undermine the confidence of the judiciary or give the appearance of impartiality or impropriety;
- Participation would create the appearance the judge is abusing the prestige of judicial office or allowing others to;
- Participation will interfere with the performance of judicial duties;
- The event relates to a case pending or impending before the judge, or the event relates to an issue likely to come before the courts;
- Participation will result in or is likely to result in judicial disqualification;
- The event is sponsored or endorsed by an organization that discriminates on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation; or
- Participation creates the appearance the judge is endorsing a political candidate or political organization.
A sampling of recent judicial ethics advisory opinions
- A judge may observe other judges’ court sessions for educational purposes, informally or as part of a formal court system mentor program. New York Opinion 2022-28.
- After a judge admonished an attorney on the record for an inappropriate attempt at humor referencing a client’s ethnicity or national origin, the judge may take further action, but is not required to do so. New York Opinion 2022-49.
- A judge may write a law review article reviewing statutory, regulatory, and administrative efforts to address the intersection of domestic violence and child protection in New York and other states if they do not comment on any pending or impending cases. New York Opinion 2022-41.
- A judge may permit a law clerk to publish an article in a law journal that argues that the law does not adequately protect employees who are using or have used medical marijuana, but the judge should review the article before it is published to ensure that the clerk’s relationship to the judge, the judge’s court, and the Maryland judiciary is not identified in any way. Maryland Opinion Request 2022-8.
- An administrative assistant for a circuit court judge may not work with a state legislator on proposed legislation that would allow a mother to be charged criminally if she uses drugs while pregnant and the baby dies shortly after birth as a result of the drug use. West Virginia Opinion 2022-15.
- A judge may co-chair a committee to educate the judiciary on implicit bias through a volunteer court observation project and may meet with other participating judges and committee members to receive feedback from the observers, but may not privately discuss with observers their feedback on the judge’s own court sessions. New York Opinion 2021-182.
- Subject to conditions, a judge may attend and watch the Denver PrideFest festival and parade and similar events like Cinco de Mayo, the Marade, and Juneteenth and may march in the Denver PrideFest parade and similar parades with a bar association such as the Colorado LGBT Bar Association. Colorado Opinion 2022-1.
- A judge may be a dues-paying member of and serve as an officer or board member of a bar association for lawyers with disabilities but may not participate in its political or campaign efforts or draft amicus briefs for the association. Colorado Opinion 2022-2.
- A judge may serve as chair of a bar association subcommittee that seeks to improve racial equity in the court system. New York Opinion 2022-13.
- A judge who has volunteered for several years in a non-profit organization’s mentoring program may not provide a testimonial for use in the organization’s marketing materials, including their website, handbook, and social media pages, if there is no limitation on the organization’s use of the testimonial. New York Opinion 2022-19.
- Judges who graduated from a university may appear with the university’s retiring president in a photograph published in the university’s newsletter or magazine as long as the judges advise the university not to use the photograph in conjunction with any advertising directed at advancing student enrollment or fundraising. Maryland Opinion Request 2022-18.
- A judge is prohibited from serving as a member of the board of directors for the New York Civil Liberties Union. New York Opinion 2022-22(A).
- A university may name its Center for Justice and Society after a sitting South Carolina Supreme Court justice, but the justice should not have access to or knowledge of the donors. The university may contact county bar associations for contributions. South Carolina Opinion 5-2022.
- A judge may not advocate with insurance companies on behalf of a family member. New Hampshire Opinion 2022-1.
- A judge may continue to serve as one of many class representatives in a federal lawsuit filed before they took the bench. New York Opinion 2021-188.
- A judge may not allow their spouse to place a campaign sign for a friend’s city council campaign in the yard of their jointly owned home. West Virginia Opinion 2022-12.
- A magistrate may not place a campaign sign in their yard for a family member in their household who is running for office. West Virginia Opinion 2022-13.
- To “test the water” about a possible candidacy for a non-judicial municipal office, a judicial official may speak privately, one-one-on with members of a political party’s town committee or other individuals in the community. Connecticut Informal Opinion 2022-3.
A sampling of recent judicial ethics advisory opinions
- Even before an evidentiary hearing on the admissibility of their spouse’s testimony, a judge must disqualify from a capital case if their spouse, a former public defender, is likely to be called as a material witness based on the totality of the circumstances, for example, the threshold for admissibility of evidence during the sentencing phase of a capital case, defense counsel’s level of motivation to compel the spouse’s testimony, and the likelihood of defense counsel’s success in admitting the spouse’s documents and testimony. California Expedited Opinion 2022-46.
- A judge who is married to the city chief of police is disqualified from any case in which a subordinate of their spouse is likely to be a material witness. Kentucky Opinion JE-129 (2021).
- A judge may respond to the county comptroller’s survey concerning the county’s assigned counsel program, subject to generally applicable limitations on judicial speech and conduct. New York Opinion 2021-167.
- If the judge comports with the dignity of judicial office and eschews personal attacks on government officials, a judge may communicate their opposition to the position of court administrators that the judge will be “unfit for service” if they do not comply with the court system’s vaccination policies. New York Opinion 2022-2.
- A member of the county commission who has been nominated to a seat on the court of appeals must resign from the commission just prior to taking the oath of office as judge and must disqualify themself from any case involving the commission or any of its subsidiaries while they served as a commissioner. West Virginia Opinion 2022-1.
- An attorney nominated to be a judge must immediately resign as a member of the bar commission that makes recommendations to the governor about filling judicial vacancies but may continue to serve as president of the State Bar until shortly before being sworn in as a judge or until their term as president ends, whichever is sooner. After becoming a judge, the judge cannot serve as past president of the State Bar. West Virginia Opinion 2022-4.
- A judge may run for and serve on the board of a homeowners association, send an introductory email to other association members prior to the election with their résumé if the email does not include their title and even if the résumé would include their current position, may participate in a meet-and-greet candidates event, and may acknowledge their employment as a municipal judge (with dates of employment if asked), but must refrain from offering other details. South Carolina Opinion 3-2022.
- A judge who completed a mediation skills program at a law school’s mediation clinic may permit the clinic to post their comments about the course on the clinic’s Instagram account for general advertising and recruitment efforts, provided the judge is satisfied their name, words, and image will not be used for fundraising. New York Opinion 2021-170.
- A judge may not accept a lawyer’s offer to represent the judge on a discounted or pro bono basis before the Judicial Standards Commission. New Mexico Opinion 2021-7.
- A judge whose spouse is running for elected office may not attend campaign events, but their picture may be included in their spouse’s campaign materials and website as long as their title or office is not mentioned, there are no visual elements identifying them as a judge, and no explicit endorsement is featured. Maryland Opinion Request 2022-1.
- An incumbent judge may appear in a robe in a campaign photograph; may utilize in their campaign a photograph that was not created for campaign purposes and cannot be reasonably interpreted to contain any misrepresentations regarding the judge; and may use a photograph that includes other judges at a public event if the photograph itself and the context, cropping, caption, and other text that accompany it do not suggest or imply any endorsement by the other judges. Illinois Opinion 2021-4.
“In the performance of their official duties or in the presence of the judge”
In 2020, the Colorado Judicial Ethics Advisory Board issued an advisory opinion stating that judges should instruct staff under their direction and control to conform to the same constraints as the judge and, therefore, to refrain from making political or divisive statements, to refrain from participating in marches or rallies such as those in support of the Black Lives Matter or Blue Lives Matter movements, and to be very cautious in their use of social media. Colorado Advisory Opinion 2020-2. That opinion had been based on the requirement in Rule 2.12(A) of the Colorado code that judges “shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code.” Comment 1 to that rule explains that a judge is responsible “for the conduct of others, such as staff, when those persons are acting at the judge’s direction or control.” (The Colorado code provisions were the identical to those in the 2007 American Bar Association Model Code of Judicial Conduct.)
The committee noted that the language of the rule “appears at odds” with that comment because the rule seems to apply to employee activities both “during and outside of working hours if those employees are subject to the judge’s direction and control,” while the comment seems limited to the conduct of staff only when they “are acting at the judge’s direction or control, which could be interpreted as during working hours only, or pursuant to a judge’s direct command.” Stating that “when the language of the rule and its comment conflict, the language of the rule governs,” the committee concluded that the “language of Rule 2.12 seems clear — ‘consistent with the judge’s obligations’ means a judge must require staff under his or her direction and control to act as a judge would under the Code” at all times.
In 2021, the Colorado Supreme Court revised Rule 2.12 to provide: “A judge shall require court staff, court officials, and others subject to the judge’s direction and control to act in a manner consistent with the judge’s obligations under this Code in the performance of their official duties or in the presence of the judge.” The comment was not amended.
Based on that amendment, the advisory committee has withdrawn Colorado Advisory Opinion 2020-2 and issued a new opinion. Colorado Advisory Opinion 2021-3. In the new opinion, the committee notes that the amended rule narrows and limits the judge’s obligations and is now consistent with the comment. Thus, the new opinion advises that “judges are not responsible under the Code for comments made by law clerks and externs on political issues or for their participation in political demonstrations, rallies, or marches, as long as the law clerks and externs do not engage in such conduct in the performance of official staff duties or in the presence of the judge.”
Judicial ethics and discipline 
You must be logged in to post a comment.