FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2020-21
Date of Issue: August 11, 2020

ISSUES

1. May a judge write and publish a biography of a noted attorney?

ANSWER: Yes. As long as the book does not cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the office, or interfere with judicial duties.

2. May such a work of non-fiction include accounts of criminal events and judicial decisions that may reflect negatively on the judicial system in place at the time of the events?

ANSWER: Yes. As long as the recounting of said historical events does not cast reasonable doubt on the judge’s capacity to act as a judge, demean the office, or interfere with judicial duties.

3. May a judge post the release date of the book on Facebook or other social media?

ANSWER: Yes.

4. May the judge who is the author participate in book promotions and speaking engagements about the book in Florida or other states?

ANSWER: Yes, as long as such events comply with the Canons including the avoidance of intermingling promotion activities with the responsibilities of a judge and/or demeaning the prestige of the judiciary.

 

FACTS

The inquiring judge wishes to publish a biography of a notable criminal attorney who handled a number of high-profile cases, primarily in California, during a career that spanned several decades ending in the late 1960s. The subject attorney is no longer alive. The contents of the book will recount the career of the attorney and the facts surrounding some of his celebrated cases as well as the resulting trials. While the events chronicled in the book took place several decades ago, some accounts will likely cast a few of the judicial decisions in a negative light. The book will refrain from expressing opinions on those decisions beyond what is documented in the historical record. The judge further plans to promote the book on social media and with selected book signings and speaking engagements.

 

DISCUSSION

Issue 1:

This committee is asked with increasing regularity if a judge may write a book, article, or other publication on a variety of topics. Be they works of fiction, non-fiction, educational or charitable, the rules are largely the same. 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 article, regardless of the genre and 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).

However, we have cautioned in the past, as we do now, that in writing any literary 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).

The basis of all the cited opinions are the restrictions included in several Canons. Canon 1 provides: “A Judge Shall Uphold the Integrity and Independence of the Judiciary.” Fla. Code Jud. Conduct, Canon 1. Canon 2A states that a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Fla. Code Jud. Conduct, Canon 2A. Similarly, Canon 2B states: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others[.]” Fla. Code Jud. Conduct, Canon 2B. Finally, Canon 6 provides: “Fiscal Matters of a Judge Shall be Conducted in a Manner That Does Not Give the Appearance of Influence or Impropriety[.] . . .” Fla. Code Jud. Conduct, Canon 6.

Thus, the committee again finds no prohibition on a judge writing a biography, non-fictional or otherwise, as long as the effort is within the confines of the relevant Canons and prior opinions cited.

Issue 2:

A slightly more vexing question is posed regarding the content of the book.1 This particular inquiry concerns a work of non-fiction. As such, the judge advises that the events and material presented will be historic in nature and supported by appropriate sources and research. Further, some of the judicial rulings recounted could be, with the hindsight of time, considered erroneous or possibly worse. The concern that a book about the life and work of this particular attorney may reflect negatively on the judiciary or law enforcement existing at the time of events are, ostensibly, a matter of historical record. We concede that any work of non-fiction allows an author to present “facts” in one light or another but normally the format would not lend itself to a judge/author offering commentary that would cast doubt on his or her present day duties and obligations, particularly with events are in the somewhat distant past. Were it otherwise, court rulings could never be second guessed by the legal profession, even with aim of improving the law. With the assurances the judge will abide by the guidance cited above and as required by the Canons, we see no problem in publishing such a work, even if it is “critical” of some decisions.

Issue 3:

We dispense with the issue of announcing the release date on social media with little commentary. We have noted that if a judge is permitted to publish a book, the judge may “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.” Id. (citing Fla. JEAC Op. 10-12). The mere act of informing people that a book from a judge is forthcoming is not prohibited as long as it complies with the Canons and guidance noted herein.

Issue 4:

The book signings and speaking tours that often accompany promotion of a publication do require additional diligence. 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. As advised in Fla. JEAC Op. 19-18 “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.”

When promoting a book, a judge must also take precautions to make certain the judge does not intermingle the promotion or sale of the book with court related obligations. 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.

The overriding caution the committee wishes to convey to the judge, whether it involves the pursuit of a book promotion or any other extra-judicial activity, is the precept expressed in Canon 3A. Specifically, “The judicial duties of a judge take precedence over all the judge’s other activities”. The plain language of such a directive requires no further explanation from us.

In conclusion, if the judge follows the parameters set forth in the Canons and the cited opinions, the judge may write, publish, and promote the biography as described in the inquiry.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 1, 2A, 2B, 3A, 4A, 4B, 5A, 6
Fla. JEAC Ops. 10-12 , 07-21, 07-04, 00-02, 99-14, 98-01, 95-37, 93-52, 88-14, 83-07, 82-05, 81-12, 78-12, 76-17, 73-08, 19-18, 20-01
In re Hawkins, 151 So. 3d 1200 (Fla. 2014)

[See Canons of Uniformity.]

_____________


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 Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 or JEAC@flcourts.org.

Participating Members:
Judge Michael 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 deleted)
Chief Justice Charles T. Canady, Justice Liaison
John Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the JQC
Melissa Hamilton, Staff Counsel

 

 

1. The committee has not been provided with the specific content of the book.