FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-34
Date of Issue: October 25, 2012

ISSUE

May a judge accept an invitation from a university editorial board member to critique a book written by the lead defense attorney of a well-publicized criminal case, when the defendant in that case remains a party in pending proceedings arising from issues raised in the criminal case?

ANSWER: Yes.  However, given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case, the Committee advises the inquiring judge to decline the invitation.

FACTS

The inquiring judge was asked by a friend who sits on a university’s editorial board if the judge would consider submitting a critique of a book written by the lead defense attorney of a recent well-publicized criminal case.  The case was heavily tracked by the media, including “gavel to gavel” coverage locally and on the internet during the month-long trial.  The inquiring judge advises that the university editorial board intends to publish the proposed critique in an online journal.  The university editorial board also intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.

    

As of the date of this opinion, the counts upon which the defendant was convicted remain pending on appeal.  Also, civil lawsuits arising from issues raised in the criminal case remain pending against the defendant.  The book’s author is not an attorney-of-record in any of those cases.

DISCUSSION

The proposed critique could be viewed as either a quasi-judicial activity under Canon 4B or as an extra-judicial activity under Canon 5B.  Compare Canon 4B (“A judge is encouraged to speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, [and] the administration of justice . . . subject to the requirements of this Code.”), with Canon 5B (“A judge is encouraged to speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code.”).  Under either view, the important consideration is that the activity is “subject to the requirements of the Code.”

    

Thus, we consider how the proposed critique could impact the requirements of the Code.  It appears that the proposed critique, depending on its content and later use, could impact the requirements contained in Canons 3B(9), 4A, 5A, and 2B.  We address each in turn.

Canon 3B(9) states, in pertinent part:  “A judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing.”  If the proposed critique were to comment upon the defendant’s alleged actions, behavior, or veracity, and if the proposed critique were to be widely publicized, then the proposed critique might reasonably be expected to impair the fairness of the defendant’s pending cases in violation of Canon 3B(9).  See Fla. JEAC Op. 2000-30 (a judge may not respond to a local newspaper’s request to answer extensive, detailed questions about an emergency shelter hearing over which the judge previously presided where the judge’s comments might affect the outcome of the parents’ impending attorney’s fees litigation in the circuit court).

Canon 4A states, in pertinent part:  “A judge shall conduct all of the judge’s quasi-judicial activities so that they do not . . . cast reasonable doubt on the judge’s capacity to act impartially as a judge . . . demean the judicial office . . . [or] lead to frequent disqualification of the judge.”  Canon 5A provides the same cautions for the conduct of extrajudicial activities.  If the proposed critique were to foreshadow how the judge might rule on a contested legal issue, then the proposed critique could cast reasonable doubt on the inquiring judge’s capacity to act impartially as a judge or lead to frequent disqualification of the inquiring judge in violation of Canons 4A and 5A.  See Fla. JEAC Op. 96-25 (judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would cast reasonable doubt on the judge’s capacity to act impartially as a judge because “it would be nearly impossible for the judge to avoid injecting his own legal opinion or foreshadowing how he might rule on a contested legal issue”).  If the proposed critique were to include comments critical of the trial judge in the defendant’s case, then the proposed critique could demean the judicial office also in violation of Canons 4A and 5A.  See Fla. JEAC Op. 80-12 (it would be improper for a judge to write a book review and critique of a book entitled “A Critical Analysis - The Warren Court” because doing so might be detrimental to the integrity of the judiciary, and might also lead to the judge’s recusal).

Canon 2B is a closer question.  Canon 2B states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”  The Committee recognizes that there is no blanket prohibition on judges writing book reviews, or writing books themselves, on legal or other subjects.  See Fla. JEAC Ops. 10-12 (judge may publish a children’s book); 98-01 (judge may write a crime novel); 93-52 (judge may co-author a chapter for a Florida Bar’s CLE course); 90-5 (judge may serve as chair of an editorial board of a legal publication); 88-14 (judge may author a book dealing with the defense of child abuse cases); 82-5 (judge may publish a book which teaches parents to teach their children the consequences of crime); 78-12 (judge may co-author a procedure manual); 76-17 (same); 73-8 (judge may write an article in Spanish for a Spanish newspaper).

However, the inquiring judge must be mindful of the fact that, once the judge has submitted the proposed critique, the judge has lost control over how the proposed critique is used.  As the inquiring judge advises, the university editorial board intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.   It is possible that the book’s publisher or the criminal defense attorney will use the proposed critique to advance their private interests.  An argument could be made that the judge, recognizing this possibility, indirectly lent the prestige of judicial office to advance the private interests of the book’s publisher or the criminal defense attorney in violation of Canon 2B.  See Fla. JEAC Op. 96-25 (judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would violate Canon 2B because it “would lend judicial prestige to the commercial interests of that station”).1 

Based on the foregoing, although the Committee recognizes that the inquiring judge could accept the invitation to write the proposed critique, the Committee advises the inquiring judge to decline the invitation given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case.

REFERENCES

Fla. Code Jud. Conduct Canons 2B, 3B(9), 4A, 4B.

Fla. JEAC Ops. 00-30, 10-12, 98-01, 96-25, 93-52, 90-5, 88-14, 82-5, 80-12, 78-12, 76-17, 73-8.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator

 

1.In Fla. JEAC Op. 96-25, the Committee conclusorily stated that the judge’s potential arrangement would be an “extra-judicial activity” under Canon 5B.  However, that opinion also could have treated the potential arrangement as a “quasi-judicial activity” under Canon 4B.