FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2019-30
Date of Issue: October 16, 2019

ISSUE

May a judge publish a work of fiction using a pen name?

ANSWER: Yes, as long as the judge’s writings do not cast doubt upon the judge’s impartiality, interfere with the performance of professional duties, or demean the judge’s office.

FACTS

The inquiring judge has written a historical novel and inquires whether the Code of Judicial Conduct allows the book to be published under a pen name.

 

DISCUSSION

The judge’s inquiry is similar to that in Fla. JEAC Op. 98-01, wherein the judge had written what was described as a “crime novel.” The 1998 opinion provides a history of prior inquiries regarding the authorship of books, but none of those inquiries involved works of fiction. This Committee perceived no difference, but cautioned the judge that the novel should 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.” See also Fla. JEAC Op. 10-12, wherein the judge wanted to publish a children’s book. The judge posing the current inquiry acknowledges having read JEAC Op. 98-01.

The Committee sees no ethical dilemma in the use of a pen name. If the practice was good enough for Mark Twain, Stendhal, Trevanian, and others, there is no reason to suspect that the inquiring judge cannot follow suit.

We are mindful of the cautionary language in Op. 98-01 regarding the potential for even fictional writings to demean the author’s judicial office. Fla. JEAC Op. 98-01 did not give explicit guidance as to what sort of fiction might cross this line. As one committee member observed, “The only way to make that kind of assessment is to read the whole book.” We conclude that the fact this judge proposes to write historical fiction - and not, presumably, a thinly-disguised roman à clef - should sufficiently insulate the book from any violations of the Canons, particularly since the judge’s name will not even appear as the author.1

 

REFERENCES

Fla. JEAC Ops. 10-12 and 98-01

Dudee v. Philpot, 2019 WL 4733908 (Ohio App. 2019)

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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 W. Joel Boles, Judicial Ethics Advisory Committee Chair, First Circuit M.C. Blanchard Judicial Building, 190 Governmental Center, 6th Floor, Pensacola, FL 32502 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
General Counsel of the JQC
Melissa Hamilton, Staff Counsel

 

1. Our research has uncovered only a single case wherein a judge’s embarking upon a career in fiction caused legal problems. Although it did not involve disciplinary action, Dudee v. Philpot, 2019 WL 4733098 (Ohio App. 2019), suggests hazards may stem from authoring what is known as a roman à clef - that is, a purported work of fiction but with thinly-veiled references to actual persons or events. In Dudee a former judge with experience in a family division wrote a novel detailing multiple court cases “in an attempt to persuade readers of the importance of traditional Christian values.” Dr. Dudee, claiming to recognize himself in one of the novel’s scenarios, then sued the author for defamation and invasion of privacy. Although “a reasonable reader could easily believe that the novel accurately depicts actual court cases,” the appellate court upheld an award of summary judgment for the author for the reasons stated in the opinion. We cite Dudee primarily as an example of the law of unintended consequences.