The Ethics Advisory Committee has been asked for its opinion on the question of whether the Code of Judicial Conduct permits a judge to write a foreword for a book on the subject of child support negotiation and litigation.

It is the committee's opinion that the Code permits a judge to write a foreword for the book as long as the writing does not interfere with the performance of judicial duties, cast doubt on the judge's impartiality, or lend the prestige of the judicial office to advance the private interests of others.

According to the judge, the book contains accurate and good advice regarding the process of computing, negotiating, and acquiring court orders for child support payments in divorce cases. The judge further indicates that the book will be an excellent resource for lay people, litigants, lawyers and possibly commissioners and judges.

Canon 4(A) of the Code of Judicial Conduct provides that subject to the proper performance of judicial duties, a judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice provided the activity does not cast doubt on the judge's capacity to decide impartially any issue that may come before the Court. The Commentary to the ABA's Canon 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 . . . . To the extent that his time permits, he is encouraged to do so, either independently or through a bar association judicial conference, or other organization dedicated to the improvement of the law.

Although this committee has never specifically addressed the question of judicial writing, this committee has previously held that the Code of Judicial Conduct permits a judge to participate in teaching activities consistent with the limitations set forth in Canon 4, Informal Opinion No. 89-9. Likewise, it is the committee's opinion that under Canon 4, a judge may write on subjects concerning the law, the legal system and the administration of justice as much as such writing does not interfere with the performance of judicial duties or cast doubt on the judge's ability to impartially decide any issue which may become before the court.

In the present case, the publication in question deals with the subject of child support negotiation and litigation, and thus, is clearly a subject which concerns the law, the legal system and the administration of justice. The judge's proposed involvement with the publication is limited to writing the foreword and therefore, is not likely to require a significant time commitment which would interfere with the performance of judicial duties.

The more difficult question is whether the judge's involvement in the publication would cast doubt on the judge's ability to impartially decide any issue which came before the court. In the present case, the judge sits on an appellate court presently which, by statute, does not have direct appellate jurisdiction over child support issues but may review such issues by certiorari. Thus, on occasion. the judge is likely to review cases involving child support issues.

According to the judge, the publication contains " accurate and good advice regarding the process of computing, negotiating and acquiring court orders for child support payments". Thus, although the judge may on occasion, hear cases involving child support issues, it is the committee's opinion that as long as the publication and foreword contain only factual information about the process for obtaining court orders for child support and do not take an advocacy position with respect to those issues, the judge's participation in the publication would not cast doubt on the judge's ability to decide impartially. The judge then would be permitted to write the foreword under Canon 4.

In the present case, however, the judge has also questioned the propriety of judicial involvement in the publication under Canon 2B. Canon 2B prohibits a judge from lending the prestige of the judicial office to advance the private interests of others. The ABA commentary to Canon 2 provides as follows:

Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

This committee has been able to locate only one advisory opinion which addresses the scope of Canon 2B in connection with judicial writings. Unfortunately, the opinion does not provide much guidance on the issue. In Advisory Opinion No. 55, the Federal Advisory Committee on Judicial Activities was presented with two questions relating to judicial writings and publications: (1) the propriety of a judge writing about cases which the judge had heard; and (2) the extent to which the judge could permissibly advertise such writings. In response to the second question, the Committee stated as follows:

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 advisable for a judge, in contracting for any publication of his writings, to retain a measure of control over the 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.

There is no indication from the information contained in the opinion request that the judge would be lending the prestige of the judicial office to advance the private interests of others. It is the Committee's opinion, however, that the judge should take appropriate steps to ensure that neither the content of the foreword nor the advertising or marketing of the publication will exploit the judicial office or advance the private interests of others. In conclusion, it is the committee's opinion that the Code permits a judge to write a foreword for the book on the subject of child support negotiation and litigation as long as the writing does not interfere with the performance of judicial duties, cast doubt on the judge's impartiality, or lend the prestige of the judicial office to advance the private interests of others.