NOTE: Various references in this ethics opinion to portions of the Michigan Code of Judicial Conduct are no longer accurate due to amendments effective August 1, 2013. Click here to review language added to (which is underlined) and language stricken from (which is indicated by strikethrough) Canons 2, 4, 5, and 7.
December 9, 1993
A judge may write an article containing general legal information, provide work product for inclusion in an educational pamphlet or cassette tape sold for profit, and receive compensation therefor, provided that the promotion and sale of the material is not an exploitation of the author's judicial position and the activity does not interfere with the proper performance of judicial duties.
References: MRPC 5.5; MCJC 2C, 4, 5A and C, 6A; JI-21; CI-427, CI-502.
A judge asks about the propriety of writing articles for an educational pamphlet directed to nonlawyers who are considering divorce. Copies of the pamphlet and cassette tape will be sold for profit. The judge wishes to be compensated for the work product.
MCJC 2C states:
"A judge should not allow family, social, or other relationships to influence judicial conduct or judgment. A judge should not use the prestige of office to advance personal business interests or those of others. A judge should not appear as a witness in a court proceeding unless subpoenaed."
MCJC 4 states:
"As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the improvement of the law.
"A judge, subject to the proper performance of judicial duties, may engage in the following quasi-judicial activities:
"A. A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.
"B. A judge may appear at a public hearing before an executive or legislative body or official on matters concerning the law, the legal system, and the administration of justice, and may otherwise consult with such executive or legislative body or official on such matters.
"C. A judge may serve as a member, officer, or director of an organization or governmental agency devoted to the improvement of the law, the legal system, or the administration of justice. A judge may assist such an organization in raising funds and may participate in their management and investment, but should not individually solicit funds. A judge may make recommendations to public and private fund-granting agencies on projects and programs concerning the law, the legal system, and the administration of justice."
MCJC 5A states:
"A judge may write, lecture, teach, speak, and consult on non-legal subjects, appear before public non-legal bodies, and engage in the arts, sports, and other social and recreational activities, if such avocational activities do not detract from the dignity of judicial office or interfere with the performance of judicial duties."
MCJC 5C states in pertinent part:
"(1) A judge should refrain from financial and business dealings that tend to reflect adversely on the judge's impartiality or judicial office, interfere with the proper performance of judicial duties, exploit the judicial position, or involve the judge in frequent transactions with lawyers or persons likely to come before the court on which the judge serves.
"(2) Subject to the requirements of C(1), a judge may hold and manage investments, including real estate, and engage in other remunerative activity, but should not serve as director, officer, manager, advisor, or employee of any business. Provided, however, with respect to a judge holding office and serving as an officer, director, manager, advisor, or employee of any business not prohibited heretofore by law or judicial canon, the effective date of the prohibition contained herein shall be the date of expiration of the judge's current judicial term of office."
Ethics opinion CI-427, applying MCJC 4, permitted a judge to write a manual for judges and lawyers, together with a book for the general public on the subject of child abuse and neglect, using materials from actual case histories, under the theory that such activity was "improvement of the law" and "activity concerning the law" under MCJC 4A. The opinion reasoned:
"Activities which enhance public knowledge about the law, the legal system and the administration of justice are clearly encompassed by terms of MCJC 4. The absence of the specific constraints found in the former Canons of Judicial Ethics, along with the encouragement offered in present MCJC 4 'to speak' and 'write' concerning the law, lead the committee to conclude that a judge may with propriety write a regular legal column of a general informational nature for a newspaper, and may contribute to radio or television programs of similar nature, provided that such activity does not interfere with the proper performance of judicial duties, and provided that all aspects of such activity conform with the provisions of the Code of Judicial Conduct."
Writing an article for an educational pamphlet on divorce qualifies as activity "for the promotion of the law" under MCJC 4A, provided that it comports with MCJC 5C, and provided further, that the product distributed does not constitute the practice of law in contravention of MCJC 5F. See State Bar v. Cramer, 399 Mich 116 (1976); MCL 450.681; MRPC 5.5.
CI-502 concerned the propriety of a judge's mail order business. The activity did not identify the judge by title or refer to the judicial office, did not interfere with the proper performance of the judicial duties, and did not reflect adversely on the judge's impartiality.
Similarly, JI-21 permitted a judge to sell a computer program developed by the judge and to reserve royalty rights of a set amount per units sold, as long as the judge retained no ownership interest in the business and did not participate in the business. Thus, the judge may receive reasonable compensation in accordance with MCJC 6A for the judge's time and effort in writing the article as contemplated in MCJC 5C(2).