FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-18
Date of Issue: May 28, 2019

ISSUES

1. May a judge write a book that touches on matters related to family court, mental health and warning signs?

ANSWER: Yes. So long as the book does not cast reasonable doubt on the judge's capacity to act impartially as a judge; demean the judicial office; or interfere with the proper performance of judicial duties.

2. May a judge actively promote the book?

ANSWER: Yes. So long as the judge does not use the prestige of office to promote the book and neither the judge, the judicial assistant, nor a member of the judge’s family sells the book to any member of the Bar.

 

FACTS

The inquiring judge has for years sat on the family law bench and for years prior to that practiced in the area of family law. The judge recently closely observed a sensational criminal case that grew out of divorce proceedings in the judge’s jurisdiction. The case called into question the mental health of the defendant who was accused of a violent attack on a spouse. The judge believes mental health issues contributed to the criminal episode. The judge is interested in writing a book about family law courts and the sometimes-associated mental health issues. Specifically, the judge wants to discuss the “warning signs” that judges and litigants should be concerned about.

DISCUSSION

Issue 1:
Writing a Book:

The inquiring judge asks us, in sum and substance, if the judge can “write a book.” Canon 5B of the Florida Code of Judicial Conduct encourages judges, as a part of their “avocational” activities, to “write, lecture, teach and participate in other extrajudicial activities.” In Fla. JEAC Op. 95-37, citing the Commentary to Canon 4B, we recognized that a judge is “in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice.” To that end, writing informative books and articles is encouraged. We agreed that it was permissible for a judge to write a biweekly column concerning issues related to attorney’s fees. Id. We find that there are no ethical impediments to a judge writing a book or an article. We have said as much on many occasions. See Fla. JEAC Op. 73-08 (A judge may write an article in Spanish for a Spanish newspaper.); Fla. JEAC Op. 76-17 (A judge may author a procedural manual for publication and sale); Fla. JEAC Op. 78-12 (A judge may write a procedural manual with a member of the bar); Fla. JEAC Op. 82-05 (A judge may write and have published a children’s book that teaches parents and children the consequences of crime); Fla. JEAC Op. 88-14 (A judge may author a book dealing with the defense of child abuse cases); Fla. JEAC Op. 93-52 (A majority of the Committee concluded that it is permissible for a judge to co-author a chapter for a Florida Bar's Continuing Legal Education course with a practicing criminal defense lawyer); Fla. JEAC Op. 98-01 (A judge may write a crime novel); Fla. JEAC Op. 10-12 (A judge may publish a children’s book).

We have cautioned in the past, as we do now, that in writing any educational materials, judges should be mindful of the issues created by taking any definitive positions. See Fla. JEAC Op. 07-21 (We caution the inquiring judge, however, to be careful not to comment on pending cases, not to answer hypothetical questions in a way that appears to commit to a particular position, and not to make any other remarks that could lead to the judge’s disqualification or be construed as an indication as to how the judge would rule in a particular case); Fla. JEAC Op. 00-02 (When publishing an article on new legislation the judge should be mindful to avoid expressing the judge’s views as opposed to educating on the status of the law); Fla. JEAC Op. 99-14 (Judge writing an article is cautioned not to intimate how the judge would rule on matters that may come before the judge or upon matters pending before any court); Fla. JEAC Op. 81-12 (Judge appearing on a television program offering a guest editorial should not indicate how the judge would rule in any particular scenario or cast doubt on the judge’s ability to rule impartially).

Issue 2:
Promoting the Book:

The inquiring judge also asks if the judge can promote the book. We have not specifically addressed this question before but our response to prior inquiries offers some guidance. In Fla. JEAC Op. 10-12, we agreed a judge may publish a children’s book, post a photo of the judge on the author page, participate in book signings and have it disclosed in a press release that the author is a judge. We concluded:

Such activities are reasonable and commonplace for publishers and are incidental to the avocational activity of the author. These activities do not appear to lend the prestige of judicial office to advance the private interests of others; do not cast reasonable doubt on the judge's capacity to act impartially; do not undermine the judge's independence, integrity or impartiality; nor do they demean the judicial office.

See also, Fla. JEAC Op. 82-05 (A judge, with considerable experience in criminal and juvenile matters, may be identified in a book the judge has written with a short biographical sketch so that prospective purchasers could determine if the author was rightfully qualified to write on the subject). In Fla. JEAC Op. 89-06, we agreed that it was permissible for a judge to autograph a book purchased by an attorney, if requested. However, we found it improper for the judge or judicial assistant to sell the book directly to a member of the Bar. In Fla. JEAC Op. 76-17, we approved the contents of an advertisement that the publishing company sought to use when promoting the sale of a book written by the inquiring judge. While the ad was itself approved, some of the members of the committee felt the ad could be seen as in poor taste and exploiting the judge’s position.1 We therefore caution that any advertisement or promotion of the book must not demean the judiciary or appear to be an effort to exploit the judge’s judicial position. See Canons 5D and 5D(1)(a). In Fla. JEAC Op. 83-07, we agreed that a judge may offer the book the judge wrote for sale at lectures delivered to attorneys, however, the judge may not directly participate in the sale of the book. We have also agreed that a judge may make a profit through the use of the internet. In Fla. JEAC Op. 07-21, we opined that a judge could receive compensation for writing an informative article about the divorce process to be published on a for-profit internet company’s divorce information website. We cautioned that the article must be educational in nature and cannot imply the judge’s “endorsement of any products, persons, services, or materials.”

In Fla. JEAC Op. 07-04, we offered an example of the promotion of an avocational activity that ran afoul of the Code. The activity involved the promotion and sale of custom knives made by the inquiring judge. In JEAC Op. 07-04, we advised the inquiring judge that it would be improper to sell the custom-made knives at a Sheriff's fundraiser. The knives would be readily identifiable as made by the judge and lend the prestige of the judge’s office to the support of the fundraiser. The Committee further advised that the judge should not donate these items to other community organizations for charitable fundraising purposes because the donation would lend the prestige of office to the fundraiser and is an implicit solicitation of funds by the judge since the judge’s logo was on each knife. We also disapproved of selling the knives at auction because the prestige of judicial office would be used to promote a fundraiser. However, the Committee had no problem with the judge selling these knives at trade shows, by special order, or on the internet.

When writing or promoting a book, a judge must take precautions to make certain the judge does not intermingle the writing, promotion or sale of the book with court related obligations. We offer, as a cautionary tale, In re Hawkins, 151 So.3d 1200 (Fla. 2014). In In re Hawkins, Judge Hawkins operated a private business from which she sold religious themed items among them a book she authored. Id. at 1203. The supreme court found violations of several of the Canons because “clear and convincing evidence demonstrated that [Judge Hawkins] regularly used court resources, including the services of her judicial assistant, [to conduct the judge’s private] business at work and during working hours.” Id. at 1212. The evidence included lawyers and other court personnel purchasing the book at the courthouse. Id. Additionally,speaking engagements for the private business were coordinated using the judge’s work phone, work computer and were handled by her judicial assistant. Id. Judge Hawkins linked the sale of her business products to her judicial office by appearing on the business website wearing the judge’s judicial robe, exploiting the judge’s judicial position for personal gain. Id.

In sum, we agree the judge may promote and sell the judge’s book. However, the judge must not allow the promotion of the book to demean the judge’s office or call into question the judge’s impartiality. Additionally, neither the judge, the judge’s assistant, nor any member of the judge’s family may sell the book to members of the bar.2 The form of advertisement or promotion chosen by the judge or the judge’s publisher must not be presented in ways that: (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) undermine the judge’s independence, integrity, or impartiality; (3) demean the judicial office; (4) interfere with the proper performance of judicial duties; (5) lead to frequent disqualification of the judge; or (6) appear to a reasonable person to be coercive. Fla. Code Jud. Conduct, Canons 4A, 5A.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 4A, 4B, 5A, 5B and Commentary to 5D(5)
Fla. JEAC Ops. 10-12 , 07-21, 07-04, 00-02, 99-14, 98-01, 95-37, 93-52, 89-06, 88-14, 83-07, 82-05, 81-12, 78-12, 76-17, 73-08

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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 to 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 of 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 whether the proposed conduct violates a provision of that Code.

For further information, contact Judge James A. Edwards, Judicial Ethics Advisory Committee Chair, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, FL 32114.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator

 

1. The ad in question stated: “A MUST FOR EVERY ATTORNEY WHO EVER TAKES AN APPEAL TO THE FLORIDA DISTRICT COURTS OF APPEAL OR THE SUPREME COURT OF FLORIDA.”

2. Commentary to Canon 5D(5). This is because a gift, bequest, favor or loan to a member of the judge’s family residing in the judge’s household might be viewed as intended to influence the judge.