A judge who writes a book on a nonlegal subject must still be careful about how the book is promoted.
I am a judicial officer writing a book on a nonlegal subject. What can I do to promote this book?
Because of the judicial position, judges always have to be very careful how they conduct other activities. Clearly, a judge is allowed to have other sources of income, such as real estate investments and ownership in businesses.
But under Canon 5 of the Code of Judicial Conduct, judges have to refrain from financial and business dealings that tend to reflect adversely on their impartiality or interfere with the performance of their duties. Even more importantly, judges cannot “exploit their judicial position.” Further, judges should not be involved in business activities that require them to have “frequent transactions with lawyers or persons likely to come before the court.”
Under Canon 6, a judge can receive compensation and reimbursement for quasi-judicial activities as long as any payment does not appear to be influencing the judge in his or her judicial duties or create an appearance of impropriety.
Therefore, there is obviously nothing wrong with a judge writing a book on any topic as long as the book is written in a fashion that doesn’t interfere with judicial duties or adversely impact on or reflect on the judge’s impartiality. Genres such as detective novels, historical works, social commentary, philosophical works, self-help books and tributes are all permissible and judges certainly have a First Amendment right to write such works.
Canon 5(a) of the Code of Judicial Conduct states that a judge may lecture, teach and speak on nonlegal subjects and engage in the arts, sports and other social and recreational activities. But these activities cannot detract from the dignity of the judicial office or performance or its judicial duties.
A problem could arise in how such a book is promoted. Judges who wish to make appearances to speak and sign books, or appear on TV or radio programs, must be extremely careful. Further, the cost for such a program has to be carefully scrutinized, particularly as to who is paying these costs. If the judge pays costs and earns profits from the book, that’s one thing. But if a third party is paying the costs, that may well create a problem with a judicial officer under Canon 5(c) because of the need to ensure financial and business dealings do not interfere with the performance of judicial duties or create the appearance of impropriety.
One of the most difficult problems is an active judge constantly referring to him or herself as a judge and potentially exploiting the judicial office to sell the book. A book written by a lawyer might not sell very well, but a book written by a judge may, solely because of the position a judge holds.
Judges are certainly allowed to identify themselves as such, but judicial officers can’t exploit that to aid in the selling of a book or article. Identifying oneself as a judge is not by itself exploitation of the judicial office. But perhaps summarizing how years on the bench have resulted in a masterpiece may be a form of exploitation. Obviously, a judge who is writing a book and perhaps is involved in the promotion of the book to some extent must ensure that this does not interfere with judicial duties.
It is important to note that judicial officers must understand that these nonlegal books can’t be written on judicial time, and judicial resources can’t be used to type the book. For instance, a judge who is sitting in chambers during a normal court day and writing the book, or having a secretary or law clerk edit or do research for it, could potentially face a serious problem.
Pennsylvania has been very strict in precluding a judge from running other activities out of their judicial office, even though there was no evidence that those other activities interfered with the performance of the judicial duties. (See In re Berry, 979 A.2d 991 (Pa. Court of Judicial Discipline, 2009).) That case involved a judge who owned several buildings and had tenants at times send their rent to the judicial office and at times had the secretary type up leases or type up small claim actions for the judge.
Further, there was a minimal amount of time involved and there was not one iota of evidence that interfered with the performance of judicial duties or the secretary’s ability to get work done. But there was still a finding of disrepute for doing so and a four-month suspension. The days of judges doing any business activity out of their offices are long gone in Pennsylvania. That includes judges who are taking additional courses and having secretaries type papers. That is over.
In conclusion, a judge writing on nonlegal subjects has every right to do so as long as it does not detract from the dignity of the office or interfere with judicial duties or create many reasons for conflicting a judge out of cases.
A judge has the right to be involved to some extent in the promotion of the book, but it might be unseemly for a judge to appear on a late-night talk show promoting his or her book, particularly some comedy programs.
Every judge has to remember it is a privilege to be a judge. In return, one has to give up certain things that everyone else has the ability to do. Every judge has to constantly think first of his or her judicial office and position and how that office and position will be impacted by whatever conduct the judge is involved in. If a judicial officer is not willing to do that, then he or she should no longer be a judicial officer. The public is entitled to judicial officers who can preside without question. The public is entitled to a judicial branch where it can look up to and respect those who are participating in it. If the holders of those offices don’t want to live up to those high expectations, then they ought to find another line of work.
There is nothing prohibiting someone who intends to run for judicial office from informing political leaders of that intention ahead of time.
I intend to run as a candidate for judicial office in 2013. May I start calling local committee people, ward leaders and local political officials to let them know I am running and then send out letters in the year before the election year?
In Pennsylvania, for common pleas and appellate courts, Canon 7 of the Code of Judicial Conduct governs the conduct of a judicial officer in election activities. One of the most critical prohibitions is found under Canon 7(a). A judge or a lawyer seeking judicial office cannot be a political leader when his or her candidacy is official and in non-election years cannot make speeches for a political organization or have his or her campaign committee solicit funds until 30 days before filing nominating petitions. In an off-election year, the judicial candidate cannot attend political functions or purchase dinner tickets.
But there is an exception under Canon 7(a)(2). A judicial officer can attend political gatherings or speak to such gatherings when he or she is a candidate for election or re-election. Although Canon 7(a)(2) is silent on the year, it appears it would have to be in the year of the judicial election.
But there is nothing that would prohibit a candidate from telephoning committee people or ward leaders or others to at least inform them of his or her candidacy the next year. To prohibit that would be a severe infringement on the candidate’s First Amendment right and would make a judicial campaign almost meaningless. Campaigns don’t start suddenly a few weeks before the nominating petitions are filed. There has to be some groundwork laid for a campaign to be successful unless the candidate has unlimited funds to spend during an election year.
There is nothing that prohibits a candidate for judicial office to call people, advise them of his or her qualifications, and say he or she is considering seeking the nomination during the next year when there is a judicial election. But the candidate cannot come to political meetings and speak at political functions in the non-election year.
During the off year, the candidate, through his or her judicial committee, cannot raise or solicit funds. A judicial candidate can never, him or herself, solicit funds.
There can be a campaign committee in place, even in an off year. But the campaign committee for the judge can’t solicit or seek funds until 30 days prior to the first day for filing nominating petitions. (See Canon 7(b)(2).)
Still, there is nothing that prohibits a candidate from funding his or her own campaign committee in the off-election year with his or her own money. Although this is unfair and to some extent gives a wealthy candidate an advantage, there is no prohibition for putting one’s own money in a judicial campaign committee. That will allow perhaps for stationery to be printed and trinkets to be purchased that can be sent to people announcing the interest in running.
Obviously, a candidate has to be very careful. The bright lines are: don’t go to political functions on the off year when there is no judicial election, don’t speak at those functions and don’t endorse other candidates. Telling individuals a lawyer is running for judge and even starting to get commitments for campaign staff and other activities are permissible. But in the year before the election, one cannot get commitments for future funds. A judicial candidate could, for instance, hire someone to run his or her campaign, assuming he or she would have his or her own money and the campaign committee to do so.
In conclusion, running for judge is a potential ethical minefield. But there are some clear paths as long as the judicial candidate knows where to stop in the year before the election. A judicial candidate who does not recognize the bright lines could have serious problems, which could result in judicial discipline or, for an attorney who is running, attorney discipline if these rules are violated. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethicsfor more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.