The Commission has been asked to give an opinion as to whether the continued editing and publishing of a newsletter, Georgia Probate Notes, by two probate judges, violates the Code of Judicial Conduct. In the past, the newsletter has been offered to probate judges only, but it is now proposed to offer the newsletter to attorneys in private practice. The first issue was mailed in 1983. Ten monthly issues and seven weekly legislative updates were published. Subscriptions for the first year were limited to probate judges; subscriptions for the second year are to be offered to both probate judges and attorneys.
The representation is made that a CPA will serve as subscription agent and will work from a mailing list. Attorney subscribers are to be instructed to send subscription orders and checks direct to the CPA who will compile the list and give it to the printer. The printer will send the newsletter direct to the subscriber. The identity of the subscriber is not to be disclosed to the probate judges by the CPA or the printer. An annual certificate so stating is to be obtained. The subscription price is $150.00 per year for eight issues, plus weekly updates during the legislative sessions.
Rule 3.7(A)(1) provides that “Judges may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice.” Pursuant to this sanction, judges have on numerous occasions authored books, articles and treatises on legal subjects. However, as the opening language of Rule 3.7(A) makes clear, such activity by judges is given approval “doing so will not interfere with the performance of their official duties or cast doubt on their capacity to impartially decide any issue.” At the same time, Rule 2.1 provides in its opening language that “[t]he judicial duties of judges take precedence over all their other activities.” Rule 2.10 further provides:
(A) Judges shall not make, on any pending proceeding or impending matter in any court, any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any non-public comment that might substantially interfere with a fair trial or hearing.
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(C) Judges shall require court staff, court officials, and others subject to the judge’s direction and control to refrain from making statements that the judge would be prohibited from making by Rule 2.10.
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(D) Notwithstanding the restrictions in Rule 2.10, a judge may make public statements in the course of official duties, may explain court procedures, and may comment on any proceeding in which the judge is a litigant in a personal capacity.
Rule 3.1(A) provides:
(A) Judges shall not engage in extra-judicial activities that detract from the dignity of their office or interfere with the performance of their judicial duties.
Rule 3.11(B) provides:
(B) Judges should refrain from financial and business dealings with lawyers, litigants, and others that tend to reflect adversely on their impartiality, interfere with the proper performance of their judicial duties, or exploit their judicial positions.
The Commission is not prepared to rule that, in principle, the proposed publication of this newsletter in the manner described, if the procedures outlined are strictly adhered to, violates the applicable Canons, but the Commission is deeply concerned that, in actual practice, it may well do so.
While the preparation for publication of books or articles on learned subjects is certainly not inappropriate so long as the work involved does not encroach on a judge’s primary commitment to the proper performance of judicial duties, the continuing publication for compensation of a monthly and sometimes weekly legal and legislative newsletter is something quite different and inherently more questionable.
In the first place, the assumption of an obligation to subscribers to prepare current material for regular publication on a rather frequent basis would appear to carry considerable risk of interference, at least on some occasions, with the judges’ performance of their judicial duties.
The Commission is concerned, secondly, because of the dangers inherent in the sale of subscriptions to members of the Bar practicing in the courts of the judges involved, a recognition of which dangers no doubt accounts for the extreme precautions proposed in the method of handling subscriptions from private attorneys. Not only must subscribing for the newsletter not be, in fact, a basis for preferential treatment before the Probate Court, but, equally important, it must not be permitted to be so perceived by members of the Bar, or others.
Finally, caution must be exercised, in preparing a newsletter of the type contemplated, to avoid improper comment concerning pending proceedings. The Commission has concluded that, if the proposed publication and distribution of the newsletter is carried out strictly in the manner represented and without interference with the judges’ primary commitment to the proper performance of their judicial duties, such publication and distribution will not violate the applicable Canons, but that, unless great caution is exercised, there is danger that in actual practice it may well do so.
[Pertinent Code of Judicial Conduct provisions: Rules 1.2(B), 2.4(C), 2.2, 2.10(A), 3.1(A), 3.7(A)(1), 3.11(B), 3.11(C), 3.11(D) . Cross reference to other relevant opinions for review: #11, #32, #40, #46, #47, #53, #76, #102, #114, #148, #160, #189.]