May a New Mexico judge publish and promote a poetry book while mentioning judicial office in a biography?

Plain-English summary

A judge planned to publish a poetry book and promote it through bookstores, the internet, literary publications, fliers, and mailings. The proposed biography mentioned the judge's office and included a photograph without a robe. The committee considered publication and promotion separately. Source: Opinion 09-05, p. 1

Rule 21-500(B) allowed writing on nonlegal subjects, subject to other Code duties. The committee found the sample poems compatible with those duties if representative, but said a poem committing the judge to an issue in a proceeding could trigger recusal. It also said book work could not interfere with judicial duties or take place during work hours. Source: Opinion 09-05, pp. 1–2

For promotion, Rule 21-200(B) barred using judicial prestige for private sales. The committee allowed a factual, incidental reference to judicial office in a biography, but questioned text repeatedly linking the judge's poetic work to a demanding judicial position. It suggested a more incidental reference and said promotional materials should avoid using office to sell the book. Source: Opinion 09-05, pp. 2–3

In practice

The opinion distinguishes writing and selling nonlegal poetry from using judicial title as a selling point. Its permission to publish is conditioned on the poems' content and on the work remaining separate from judicial hours and duties. Source: Opinion 09-05, pp. 1–3

Common questions

Q: Could the judge publish the poetry book?

A: Yes, on the facts provided and subject to the Code's content and work-duty limits. The committee found no issue with the sample poems if they represented the whole book. Source: Opinion 09-05, pp. 1–2

Q: Could the author biography identify the judge's office?

A: An incidental factual mention was acceptable. The committee questioned language emphasizing the judicial position as part of the poetry narrative because it might promote sales through office. Source: Opinion 09-05, pp. 2–3

Q: Could book work occur during judicial work hours?

A: No. The committee said publishing and promoting the book could not interfere with judicial duties or be done during work hours. Source: Opinion 09-05, p. 2

Background and rules framework

The committee applied the Code's permission for nonlegal writing and the limits on impartiality, judicial duties, and use of judicial prestige. It separately cited recusal for a poem that committed or appeared to commit the judge on an issue in a proceeding. Source: Opinion 09-05, pp. 1–3

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-500(B), 21-500(A), 21-400(A)(6), 21-100, 21-200(B), and 21-200. Source: Opinion 09-05, pp. 1–3

See also

• NM Judicial Ethics Op. 09-01: Magazine Essay
• NM Judicial Ethics Op. 12-11: Autobiographical Book

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 09-05

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

November 3, 2009

Re: Judicial Advisory Opinion No. 09-05

You have asked for guidance from the Advisory Committee on the Code of Judicial Conduct concerning your publication, marketing, and sale of a book of your poetry. You have inquired about both the publication itself and the manner in which your name and position will be used in connection with the promotion of the book.

You have provided the Committee the following facts. The book contains poems that are not legal in nature. The publisher markets primarily in the southwest, and the book will be available in bookstores and on the internet. It will be promoted on the internet and in various other ways such as in literary publications, fliers, and mailings. Because the method of promotion cannot be selective when addressing the community at large, you would expect that individuals within the legal community will be included in the promotional efforts. You will be listed as the author without title. However, in a brief biographical note, there will be a photograph and a description of your personal background, including your being a former attorney in private practice and your current position as a XXXXX judge. You would not be wearing a robe in the photograph.

Under Rule 21-500(B) NMRA, a judge may "speak, write, lecture, teach and participate" in extra judicial activities concerning non-legal subjects, "subject to the requirements" of the Code of Judicial Conduct. Rule 21-500(A) specifically sets forth limitations on such extra judicial activities. They must not: "(1) cast doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; (3)

interfere with the proper performance of judicial duties; or (4) violate the judge's oath and obligation to uphold the laws and constitutions of the United States and the State of New Mexico."

From the facts you have provided, it appears that the publication of your book does not conflict with these limitations, subject to our cautionary notes that follow. As to the first limitation, you state that the poems are not legal in nature. Even so, if any poem was to make a statement as to commit, or appear to commit, you as to an issue or controversy in a proceeding, you would be required to recuse yourself from such proceeding. Rule 21-400(A)(6) NMRA. As a result, we advise that you scrutinize each of the poems to be published to ensure that there is no such content. As to the second limitation of Rule 21-500(A), we would caution you to review each poem to ensure that it does not, in any way, infringe upon your obligation to establish, maintain, and enforce high standards of conduct as required by the Code of Judicial Conduct, Rule 21-100 NMRA, and otherwise does not demean your judicial office. You have provided the Committee samples of the poems to be published. If these samples are representative of all the poems in the book, we do not perceive a problem in this regard. As to the third limitation, there is not a problem so long as you do not work on the publication and promotion of the book during work hours and your work does not interfere with your ability to perform your judicial duties. As to the fourth, we again suggest that you review the content of each of the poems.

With regard to promoting the book, we refer you to Rule 21-200(B) NMRA, which states in part that "[a] judge shall not lend the prestige of judicial office to advance the private interest of the judge or others." From the plain language of this rule, you may not use your title or position to promote the book to increase sales for either your benefit of that of your publisher. Of course, your name may appear, even though you are known in the community as a XXXXXX judge. Moreover, as part of the description of your personal background, it is also appropriate to state your position as a statement of fact.

The Committee does have some minimal concern, however, with the proposed text of your personal background that you have provided. You have informed us that, following a paragraph that discusses your family and educational background, the proposed text would read:

After clerking for [the XXXXX] he practiced law for over twenty years, first as an associate, then as a partner in the same firm. In late 2005 he was appointed XXXXX court judge by the

Governor. Long before becoming a judge, he found his voice as a poet. Even with a demanding law practice, the early dawn hour would often find him at a table in a dark part of the house, writing out poems in longhand by candlelight. Now with an even more demanding position as a judge, he continues his poetic endeavors, although at shorter intervals before dawn. Over the years, his poetry and short stories have been published in regional journals and anthologies. This is his first book.

Our concern is that this description may unnecessarily highlight your position as a judge. The Committee believes that by calling attention to your becoming a poet long before you became a judge and your "more demanding position as a judge," the personal information may be being used in such a manner as to promote the book, which does not, by your description, involve legal or judicial content. To avoid possible conflict with Rule 21-200, you may wish to state your position in an incidental way, without relating it to your poetry.

We lastly address the other promotional means that you have listed-the internet, literary publications, fliers, and mailings. As commercial publication, you and your publisher have a reasonable expectation that you will be able to promote the book. The restrictions of Rule 21-200 concerning le ding the prestige of judicial office to advance private interests should guide your effort. Thus, you should avoid the use of your position to promote the book. However, the Committee believes that if your personal background is included in the promotion, you may list your title in an incidental manner.

Very truly yours,

James J. Wechsler
Chair
JJW:ow
cc: Hon. Kevin L. Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman, IPL Director
Professor Robert L. Schwartz