Tuesday, October 30, 2012
A recent opinion from the Florida Judicial Ethics Advisory Committee:ISSUE
May a judge accept an invitation from a university editorial board member to critique a book written by the lead defense attorney of a well-publicized criminal case, when the defendant in that case remains a party in pending proceedings arising from issues raised in the criminal case?
ANSWER: 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.FACTS
The inquiring judge was asked by a friend who sits on a university’s editorial board if the judge would consider submitting a critique of a book written by the lead defense attorney of a recent well-publicized criminal case. The case was heavily tracked by the media, including “gavel to gavel” coverage locally and on the internet during the month-long trial. The inquiring judge advises that the university editorial board intends to publish the proposed critique in an online journal. The university editorial board also intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes.
As of the date of this opinion, the counts upon which the defendant was convicted remain pending on appeal. Also, civil lawsuits arising from issues raised in the criminal case remain pending against the defendant. The book’s author is not an attorney-of-record in any of those case.
The reasoning:...the inquiring judge must be mindful of the fact that, once the judge has submitted the proposed critique, the judge has lost control over how the proposed critique is used. As the inquiring judge advises, the university editorial board intends to send a copy of the proposed critique to the book’s publisher which can use the proposed critique as it wishes. 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. See Fla. JEAC Op. 96-25 (judge’s potential arrangement to appear on a television station “to comment about, explain to, and educate the public concerning diverse legal matters including explaining and clarifying the proceedings during high publicity trials” would violate Canon 2B because it “would lend judicial prestige to the commercial interests of that station”).
Based on the foregoing, although the Committee recognizes that the inquiring judge could accept the invitation to write the proposed critique, the Committee advises the inquiring judge to decline the invitation given the restrictions which the Code of Judicial Conduct would place on the judge in this specific case.