Opinion Number: 98-1
Date of Issue: February 17, 1998
JUDGE WRITING FICTIONAL CRIME WITH HELP FROM AN ASSISTANT STATE ATTORNEY
1. May a judge ethically write a crime novel? ANSWER: Yes. A judge may ethically write a crime novel so long as it 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 who serves in the criminal division and who is writing a fictional crime novel, ethically consult with and accept the help of an assistant state attorney who does not appear before the judge? ANSWER: Yes. So long as the assistant state attorney is not the co-author of the novel, she does not appear before the inquiring judge, and provides only intermittent assistance regarding the novel, the judge may ethically accept her assistance without the necessity of disclosure.
The inquiring judge is contemplating writing a fictional crime novel. An assistant state attorney, who does not appear before him in his capacity of a criminal court judge, is willing to help him with the book. The assistant state attorney will assist by aiding with the drafting of realistic scene descriptions. The assistant state attorney will not be a co-author of the novel, and any assistance she provides will be on an intermittent basis.
Canon 5 of the Code of Judicial Conduct is entitled "A Judge Shall Regulate Extrajudicial Activities to Minimize the Risk of Conflict With Judicial Duties. It delineates in general the permissible avocational activities for a judge. Canon 5B provides that, "A judge may speak, write, lecture, teach and participate in other extrajudicial activities concerning non-legal subjects, subject to the requirements of this Code." [Emphasis added]. Canon 5A permits a judge to engage in extrajudicial activities so long as, the judge conducts all of his or her extra-judicial activities so that they do not, "(1) cast reasonable doubt on the judge's capacity to act impartially as a judge; (2) demean the judicial office; or (3) interfere with the proper performance of judicial duties."
This Committee has on many occasions addressed the ethical propriety of a judge authoring both legal and non-legal matters. See, Opinion 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. The state attorney's office is aware of the co-authorship and, in fact, reviewed and helped edit the chapter. One of the majority members believed that disclosure should be made for a period of about one-year. A minority of the Committee feels that disclosure should be made and disqualification only if requested. The minority concludes that "[i]f the co-authorship was with the state attorney's office, then there should be disclosure. If the state attorney's office simply edited the product, disclosure would not be necessary."); Opinion 90-5 (A judge may serve as Chairman of an Editorial Board of a legal publication.); Opinion 89-6 (A judge may give a book which he authored to a member of the Bar, and may autograph a book purchased by an attorney, if requested. However, it is improper for the judge or judicial assistant to sell the book directly to a member of the Bar.); Opinion 88-14 (A judge may author a book dealing with the defense of child abuse cases.); Opinion 82-5 (A judge may publish a book which teaches parents to teach their children the consequences of crime.); Opinion 78-12 (A majority of the Committee concluded that a judge may co-author a procedure manual with a lawyer. The majoritys approval was conditioned that the projects not interfere with the performance of the judge's full-time judicial duties.); Opinion 76-17 (A judge may author a procedure manual for publication and sale); Opinion 73-8 (A judge may write an article in Spanish for a Spanish newspaper.).
Subject to any limitations set forth in Canon 5, this Committee finds that the inquiring judge may write a crime novel and not run afoul of the Code of Judicial Conduct.
The inquiring judge raises another issue involving the writing of the crime novel. The judge asks whether he may accept the help of an assistant state attorney. The judge notes that he presently serves in the criminal division and that he will disqualify himself from any case in which the assistant state attorney appears before him. The assistant state attorney's role with reference to the crime novel is to assist the judge with the drafting of realistic scene descriptions.
In Opinion 93-52 a majority of this Committee found it ethically permissible for a judge to co-author a chapter for a Florida Bar's Continuing Legal Education course with a practicing criminal defense lawyer. Under the facts of that opinion, the state attorney's office is aware of the co-authorship and, in fact, reviewed and helped edit the chapter. A minority of the Committee believed that the judge should make disclosure and disqualify himself only if requested. The minority also concluded that "[i]f the co-authorship was with the state attorney's office, then there should be disclosure. If the state attorney's office simply edited the product, disclosure would not be necessary.").
In the present inquiry, the judge is the sole author of the novel. The assistant state attorney is neither a co-author of the novel nor does she appear before the inquiring judge in her professional capacity. The assistant state attorney's role is to provide the judge with intermittent assistance regarding scene descriptions. Under these stated circumstances, the judge may accept the assistance of the assistant state attorney without the necessity of disclosure.
Florida Code of Judicial Conduct: Canons 5, 5A, and 5B
Florida Judicial Ethics Advisory Committee Opinions: 93-52, 90-5, 89-6, 88-14, 82-5, 78-12, 76-17, and 73-8.
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 by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, Opinion No. 90,133 (Fla. September 4, 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.
For further information, contact The Honorable Scott J. Silverman, Chairman, Judicial Ethics Advisory Committee, The Richard E. Gerstein Justice Building, 1351 NW 12th Street #513, Miami, Florida 33125.
Participating Members: Judges Cardonne, Charles J. Kahn, Lisa D. Kahn, Patterson, Rushing, Silverman, Smith, and Tolton; and Attorney Blanton
Copies furnished to:
Justice Charles T. Wells
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of judge deleted from this copy)