In a recent opinion, the Massachusetts Committee on Judicial Ethics advised that a judge may write, publish, and promote a novel but also described the numerous precautions the judge should take to ensure that promotional activities did not improperly invoke the prestige of the judicial office or otherwise violate the code of judicial conduct.  Massachusetts Letter Opinion 2021-2.

The inquiring judge had written “a legal suspense novel set in both real and fictional Massachusetts locations.”  The commercial publishing company that wanted to publish the novel “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.”

The opinion noted that, “even in a work of fiction,” 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;” “write about or discuss a pending or impending case,” “disclose nonpublic information;” or “convey any predisposition with respect to issues or matters that may come before the judge.”

With those caveats, the committee advised that 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.”  However, the committee further cautioned in general that a judge:

• Must ensure that “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;”
• Must not use any court resources in writing, publishing, or promoting the novel;
• “Should not directly sell or be involved in financial transactions” for the sales of the book;
• May not use the judge’s judicial title or office for promotional purposes or otherwise exploit the judicial position or permit others to do so;
• Should only agree to publication contracts that allow the judge to “retain sufficient control over the advertising” to avoid such exploitation; and
• Must report any earnings from sales of the novel on the judge’s annual, public extra-judicial income report.

More specifically, the committee stated:

• “A judge may not use judicial email or court mailing lists to promote sales of a novel authored by the judge.”
• At a book signing, the financial transactions for sales of the book “should be handled by someone other than the judge.”
• A judge should not participate in book signings and other promotional activities “at a courthouse or any other location that would lend the prestige of judicial office to efforts to sell the judge’s novel.”
• A judge should take “particular care” when using social media for promotional activities on social media, such as maintaining an author website or author profile on different platforms.
• When “a book has appeal to a wider audience” (in contrast to an educational book intended for lawyers), a judge should not target promotions to lawyers to prevent “impermissibly trad[ing] or appear[ing] to trade on the judge’s status and relationships with lawyers.”

However, the committee stated that judges who are also authors “are not required to hide their judicial identities” despite the prohibition on abusing the prestige of office.  Thus, the committee advised:

• 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.”
• “At book-signing events and in public discussion of the judge’s book, a judge may identify as a judge in response to questions.”

Noting that “the distinction between proper and improper use of a judge’s title may be subtle and highly dependent on circumstances,” the committee explained 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.”  The opinion noted that “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.”  The committee encouraged the judge to contact it “if more specific questions arise” during promotion of their novel.

See also “The Judge as Author,” Judicial Conduct Reporter (spring 2013); U.S. Advisory Opinion 114 (2014).