FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-17
Date of Issue: November 2, 2021

ISSUE

May a judge write comments about a book by an expert witness when the comments are intended to be included in the published book and potentially used in advertisements?

ANSWER: No.

FACTS

A judge was requested by the author of an upcoming book to provide short written comments on its merits. The book was written by a person who holds himself out as an expert in scientific matters related to court cases and who was retained by the judge as an expert when the judge was in private law practice. The author requests that the comments be addressed from a judge’s perspective and is to indicate how the work would contribute to the legal profession. The comments would be included in the published book and would potentially be used in promotional materials for the book.

 

DISCUSSION

The inquiring judge has been asked to provide comments on the “merits you might discern” in a book to be published by an author whom the judge retained as an expert witness when the judge was in legal practice. The author seeks favorable comments that would be included in the published book and would potentially be used in promotional materials. The comments are to be made from a judicial perspective.

Canon 2B of the Florida Code of Judicial Conduct states that “. . . A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others. . .”

The book is clearly a commercial endeavor. Its success would bring profits to the publisher and to the author. Further, due to the role of the author as an expert witness, the book's success and the judge’s endorsement of the book and its author could enhance the author's career as an expert witness.

This Committee has addressed several questions involving situations similar to the one currently posed, but none dealing with the exact issue raised by the present inquiry. Varying answers have been given, depending upon the unique circumstances described in each inquiry.

In Florida Judicial Ethics Advisory Committee Opinion 20-11, a judge asked if it would be permissible to write a foreword to a memoir written by a family member of the judge. Such an action was approved by the Committee. In that instance, it was made clear that the judge’s official title would not be used in the book. The opinion cautioned that “If it did our answer may be different.” Today we deal with that issue.

Some earlier opinions have allowed judges to write critiques of books, but have expressed reservations. In Fla. JEAC Op. 12-34, a judge asked if the judge would be allowed to critique a book written by a lead defense attorney about a well-publicized criminal case. The Committee's answer should give pause to any judge asked to take such action, even when it may be permitted. It read, “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.” As stated in that opinion, “There is no blanket prohibition on judges writing book reviews, or writing books themselves, on legal or other subjects.” (Cites omitted) The exact concern raised by the present inquiry was clearly anticipated. “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.”

Fla. JEAC Op. 21-14, a quite recent opinion, dealt with a judge who wished to post a congratulatory message on the LinkedIn website when a book written by the judge’s spouse was to be released. This Committee found, in that instance, that such an action would violate Canon 2B. The perception that the message would be considered an endorsement and promotion of the book, and the substantial likelihood that the message would come to the attention of attorneys and other persons whom the judge is in a position to influence led the Committee to the conclusion that posting the message would not be appropriate.

In the present case, the request made by the author seems clearly intended both to lend the prestige of the judicial office to the author and to advance the private interests of the author and the publisher of the book. The Committee finds that the judge should respectfully decline the request.

 

REFERENCES

Fla. Code Jud. Conduct, Canon 2B
Fla. JEAC Ops. 12-34, 20-11, 21-14

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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 futher information, contact Judge Nina Ashenafi-Richardson, Chair of the Judicial Ethics Advisory Committee, 301 S. Monroe Street, Room 265-B, Tallahassee, FL 32301 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 of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel