Opinion  CJE Opinion No. 2021-02

Date:	06/07/2021
Organization:	Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Judges as Authors: Novels or Other Works of Fiction

You have sought guidance from the Committee on Judicial Ethics (CJE) regarding whether the Code of Judicial Conduct (Code) permits you to contract with a for-profit publishing company to publish a novel and engage in certain promotional activities. Subject to the cautions described below, we advise that you may publish your novel through a commercial publisher and engage in promotional activities so long as such promotional activities do not invoke the prestige of your judicial office or otherwise violate the Code.

1. Background.¹ Before becoming a judge and during your personal time as a judge, you wrote a legal suspense novel set in both real and fictional Massachusetts locations. A commercial publishing company would like to contract with you to publish your novel. The publishing company requires its authors to maintain a website and to participate in other promotional activities, including building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites such as Amazon and Goodreads. You have inquired whether the Code permits you to contract with the publisher and to engage in promotional activities such as the ones described. You represent that, in promoting the novel, you would speak and write only in your personal capacity.

2. Discussion.² Subject to certain restrictions, the Code permits judges to write novels or other works of fiction, contract with commercial publishers, participate in certain promotional activities, and receive reasonable compensation from sales of their books. See, e.g., Rule 1.3, Comment [4] ("Special considerations arise when judges write or contribute to publications of for-profit entities, whether related or unrelated to the law."); Rule 3.12, Comment [1] ("A judge is permitted to accept wages, salaries, royalties, or other compensation for teaching, writing, and other extrajudicial activities, provided the compensation is commensurate with the task performed and the judge's qualifications to perform that task.").

Broadly, the restrictions on judges' ability to write, publish, and promote books they have authored are designed to uphold the public confidence in the independence, fairness, and impartiality of the judiciary. See Rule 1.2; see also, e.g., Rule 3.7, Comment [2] ("when engaging in any extrajudicial activity, a judge must consider the obligations of judicial office and avoid any activities that are reasonably likely to interfere with those obligations"). For example:

• A judge must ensure that participation in promotional efforts or other activities related to the publication and sale of a book do not distract from or interfere with the duties of judicial office. See Rule 2.1; Rule 3.12, Comment [1].
• A judge may not write about or discuss a pending or impending case, or disclose nonpublic information, even in a work of fiction. See Rule 2.10; Rule 3.5.
• When participating in promotional activities, a judge should not convey any predisposition with respect to issues or matters that may come before the judge. See Rule 2.11(A)(4).
• A judge may not use any court resources in connection with the writing, publication, or promotion of a novel. See Rule 3.1(E) (judges shall not "make use of court premises, staff, stationery, equipment, or other resources, except for use that is reasonable in scope, not prohibited by law, and incidental to activities that concern the law, the legal system, or the administration of justice"); Rule 3.1, Comment [5]. For example, a judge may not use judicial email or court mailing lists to promote sales of a novel authored by the judge.
• A judge should not author materials that may give the impression that the judge is subject to political influence or favors the interests of a political organization or candidate. See Rule 4.1, Comment [2].
• A judge should not directly sell or be involved in financial transactions for the sale of copies of a novel written by the judge. Rule 3.11; CJE Opinion No. 2017-04; CJE Opinion No. 2016-04. For example, at a book signing, the financial transactions for the sale of a book written by a judge should be handled by someone other than the judge.
• A judge should take particular care with respect to any promotional activities that involve the use of social media, such as maintaining an author website or author profile on various platforms. As we have opined, a judge's use of social media, while permitted, implicates several provisions of the Code and requires caution. See, e.g., CJE Opinion No. 2021-01; CJE Opinion No. 2016-09; CJE Opinion No. 2016-08; CJE Opinion No. 2016-01, as modified by CJE Opinion No. 2018-03. Thus, in contracts for publication of their written work, judges must retain sufficient control over promotional activities that rely upon social media to ensure that they do not run afoul of the Code. Rule 1.3, Comment [4]. Here, where the particulars of any promotional efforts via social media are not yet known, the CJE invites you to pose additional questions if they arise as you are asked to engage in specific promotional activities.

Importantly, a judge may not use, or permit others to use, the judge's judicial title or office, or otherwise exploit the judicial position, for promotional purposes. See Rule 1.3, see also Rule 1.3, Comment [4] ("A judge should not permit anyone associated with the publication of [the judge's written work] to exploit the judge's office in a manner that violates this Rule or other applicable law."). Thus, "[i]n contracts for publication of a judge's writing, the judge should retain sufficient control over the advertising to avoid such exploitation." Rule 1.3, Comment [4]. A judge's obligation to avoid abuse of the prestige of judicial office also requires, for example, that:

• A judge should not participate in promotional activities, such as book signings, at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge's novel. Rule 1.3.
• While it may be appropriate for a judge to target the legal profession in promoting an educational book intended to be used by lawyers, where, as here, a book has appeal to a wider audience, a judge should refrain from targeting lawyers in efforts to promote the book. Doing so would impermissibly trade or appear to trade on the judge's status and relationships with lawyers. Rule 1.3; Rule 2.4(C); Rule 3.1(D).

However, judges are not required to hide their judicial identities. Thus, a judge may be identified as a judge or by title in biographical materials that contain only factual statements, including on the jacket of a book authored by the judge, so long as the judge's position is neither unnecessarily emphasized nor exploited for purposes of promotion. See CJE Opinion No. 2017-02. Similarly, at book-signing events and in public discussion of the judge's book, a judge may identify as a judge in response to questions. The distinction between proper and improper use of a judge's title may be subtle and highly dependent on circumstances. Broadly, we advise that a judge should only state the judge's judicial position in an incidental way, without relating that position to the work of fiction authored by the judge.

Judges are required to report any earnings from sales of novels on the annual Public Report of Extra-Judicial Income promulgated by the Supreme Judicial Court. See Rule 3.12; Rule 3.15. Earnings may also need to be reported on the annual Statement of Financial Interests required to be filed with the State Ethics Commission, pursuant to G.L. c. 268B. See Rule 3.15(A); G.L. c. 268B, § 5.

3. Conclusion. The Code of Judicial Conduct permits you to contract with a commercial publisher to publish a legal suspense novel that you have authored and may permit you to engage in promotional activities, including maintaining a website, building a mailing list, conducting virtual book club events or readings, attending book signings, and maintaining profiles on social media websites. Your participation in such activities is always subject to the considerations and restrictions identified above. Thus, you should ensure that the promotion of your novel does not invoke the prestige of your judicial office; interfere with the performance of your judicial duties; comment on any pending or impending cases, or otherwise disclose nonpublic information; give the impression that you favor a political candidate or organization; or otherwise cast doubt on your independence, integrity, or impartiality.

Because you have not yet finalized a contract with a publisher, our advice is necessarily general. However, we invite you to contact the Committee on Judicial Ethics if more specific questions arise as you engage in activities to promote your novel.

1. This opinion relies on facts you have provided. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force or effect.
2. For purposes of this opinion, we address only works of fiction authored by judges. Additional or different limitations may apply if a judge authors a non-fiction writing that concerns the law, the legal system, or the administration of justice.