Advisory opinions on the issue allow a judge to write a book review but prohibit a judge from allowing excerpts from a positive review to be used to promote the book and from writing a blurb solely for marketing purposes.
For example, the California Supreme Court Committee on Judicial Ethics Opinions recently advised that, when the primary purpose “is to engage in educational discourse related to the law, the legal system, or the administration of justice,” a judicial officer “may review, critique, or comment on legal education books in a legal publication” and include their title in the review. California Supreme Court Committee Advisory Opinion 2022-48. The opinion noted that the code “generally permits and encourages judges to engage in educational activities, particularly those concerning the law, the legal system, and the administration of justice” but also prohibits using judicial prestige to advance others’ interests. To “harmoniz[e]” those provisions, it explained:
Discussions regarding legal education books or writings in legal publications, such as legal periodicals or newsletters, have important educational value and contribute to the improvement of the law and legal system. . . . While the committee agrees that judges may not promote others’ written works, review or critique of legal works is an educational exercise and consistent with the canons. Although a positive review or discussion may incidentally lead to increased sales, the primary purpose of such discussions is educational rather than promotional.
The opinion cautioned that the substance of the review “must otherwise comply with the canons; for example, the judicial officer must not engage in improper political commentary or undermine the integrity or impartiality of the judiciary.”
Moreover, the committee advised that a judicial officer who has not contributed to a book may not provide a written endorsement that includes their title to be used on the book cover because the primary purpose of such an endorsement is to allow the publisher to “leverage” the judicial title to market the publication. It explained:
Authors and publishers typically seek written endorsements from high-profile or prestigious individuals, sometimes called “book blurbs,” for the placement on a book cover to market and promote the book for sale. An endorsement from a well-known judge, for example, might suggest to would-be readers that a law-related book is particularly interesting or useful, leading to increased sales. When a judicial officer has not authored, co-authored, or contributed to the book, the primary purpose of such an endorsement is not to identify a contributor by judicial title or engage in an educational exercise, but rather to use the endorsing judicial officer’s title to promote sales.
Other opinions reflect a similar distinction.
A judge may write a review of a book about an historical event for a legal periodical as an academic exercise and not for commercial purposes but may not for marketing purposes write a testimonial regarding the value of a bar publication or write commentary to be included on a book jacket. California Judges Association Advisory Opinion 65 (2012).A judge may not write a testimonial/endorsement for a legal practice guide published by a non-profit, bar-related legal organization. Connecticut Informal Advisory Opinion 2010-35.A judge may not write comments about how an expert witness’s book would contribute to the legal profession from a judge’s perspective to be included in the book and potentially used in advertisements. Florida Advisory Opinion 2021-17.A judge may not write an appraisal intended to promote the sales of a book but may write a book review in a journal or newspaper intended “to inform the legal community or the general public of a new contribution to the legal or general literature,” even if the publisher uses excerpts from the review to promote sales and even if the newspaper or journal compensates the judge for the review. Illinois Advisory Opinion 1994-15.A judge may write book reviews for compensation for an out-of-state newspaper when they were asked because of their prior journalism experience, not because they are currently a judge, and they would not be identified as a judge in the reviews. Kansas Advisory Opinion 186 (2020).A judge may write a review of several books on methamphetamine addiction. Nevada Advisory Opinion JE2008-8.A judge may review a legal textbook and retain the reviewed book in their personal library. New York Advisory Opinion 2021-117.A judge may write and post a review of a friend’s novel online without mentioning their judicial position provided the purpose is not to promote the book’s sale and the judge does authorize use of the review on the book jacket or elsewhere to promote sales. New York Advisory Opinion 2020-85.A judge may not provide an endorsement of a friend’s non-fiction book that would appear on the cover and identify them as a New York judge even if their name is not used. New York Advisory Opinion 2012-26.A judge may not provide a quote to be included on the inside leaf of a book a friend has written about auditing fraud even if their title will not be mentioned and the only compensation is a complimentary copy of the book. New York Advisory Opinion 2011-54.A judge may submit to the New York Law Journal a review of a book authored by a clergy member at their house of worship but should not permit the author or publisher to use any portion of the review to promote the book’s sale. New York Advisory Opinion 2006-114.A judge may write a review of a novel for a local legal newspaper but should not permit the author or publisher to use part of the review to promote the book’s sale and should inform the newspaper, in writing, that the review is being provided on the understanding that no portion can be used for promotions. New York Advisory Opinion 2005-28.A judge may review a legal publication but should not prepare a testimonial that would be included in a marketing brochure or provide a quote about a book for the book jacket. New York Advisory Opinion 1997-133.A judge may not author a quote about a book involving legal issues solely for use on the book jacket but may write a book review for publication in the New York Law Journal or elsewhere. New York Advisory Opinion 1993-14.A judge may not write a review of a book on a legal subject when the publisher has stated that it will use some of the judge’s comments to promote sales. Pennsylvania Informal Advisory Opinion 11/4/03.A judge may write a letter on judicial letterhead at the request of a for-profit publisher to be included in a booklet about substance abuse as long as it cannot be interpreted as an endorsement of the booklet and does not impact the appearance of the judge’s impartiality in the trial of related matters. Texas Advisory Opinion 192 (1996).A judge may write book reviews that are “bona fide contributions addressing the substance” of the book and that do not “exploit or detract from the dignity of the office” but “should undertake reasonable efforts to guard against the subsequent use” of a review in promotional materials that may exploit the prestige of the office. U.S. Advisory Opinion 114 (2014).
Prefaces
With some caveats, judicial ethics advisory committees allow judges to write forewords, prologues, or prefaces for books if they will not receive compensation.
In giving that permission, several committees remind judges to retain editorial control over the content of what they write and the right to review any biographical information used. See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. For example, the Maryland committee advised that a judge who is writing an introduction to a book should take reasonable steps to ensure that the publisher does not exploit the prestige of their judicial office in marketing of the book, explaining that, in the context of a book published by a non-profit entity such as a bar association, the judge should ask “the publisher to consult with the [judge] before mentioning [their] name or position in any marketing efforts.” Maryland Advisory Opinion Request 1980-7.
Some of the opinions warn the judge that a foreword they write should not identify them as a judge. See Florida Advisory Opinion 2020-11. Some note that the judge did not plan to identify their judicial status in the foreword, suggesting the answer may be different if the preface refers to their office. See Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. Other opinions do not address the issue.
Some opinions remind the judge to review the entire book and determine whether authoring a foreword will cast doubt on their impartiality or reflect a predisposition regarding particular cases, issues, parties, or witnesses. Connecticut Advisory Opinion 2010-15; Florida Advisory Opinion 2020-11. See also Ohio Advisory Opinion 1987-8. Similarly, the Massachusetts committee advised that a judge should be careful to ensure that nothing they write in the foreword or any way they associate themself with anything the author writes casts doubts on their capacity to make impartial decisions. Massachusetts Advisory Opinion 1993-2.
The opinions state:
A judge may author a foreword to a book written by a police officer on child safety and the Internet but, if the author appears as a party or witness before the judge or the judge presides over a case about the subject of the book, the judge should disclose the connection and consider recusal at a party’s request based on “the nature of the proceeding or docket, whether reference to or reliance upon the book is foreseeable, whether the Judicial Official is the sole decision maker (i.e. whether the matter is to the court or a jury) and whether self-represented parties or lawyers are involved.” Connecticut Advisory Opinion 2010-15.A judge may write the foreword to a self-published memoir written by a family member. Florida Advisory Opinion 2020-11.A judge may write the preface to a book about the history of the county. Florida Advisory Opinion 1977-5.A judge may provide an introduction to a book on a specific area of state law published by the Maryland State Bar Association as part of its continuing legal education program, but different considerations may apply to works published by for-profit entities. Maryland Advisory Opinion Request 2013-26.A judge may write an introduction recommending a book about the prevention and treatment of alcoholism to judges and other professionals. Maryland Advisory Opinion Request 1980-7.A probate and family court judge may write a foreword for a book on divorce. Massachusetts Advisory Opinion 1993-2.A judge may write a foreword for a book on the bicentennial of the U.S. Constitution. Ohio Advisory Opinion 1987–8.A judge may write forewords for books that are “bona fide contributions addressing the substance of the book” but should make reasonable efforts to prohibit its use in promotional materials. U.S. Advisory Opinion 114 (2014).
The only outlier is a New York advisory opinion stating that a judge should not write a foreword to a law book dealing with the court over which the judge presides when the book is a commercial publication intended to earn a profit for the publisher and author. New York Advisory Opinion 1997-1. The committee reasoned:
[T]here is a clear and overt nexus between the writing that is sought and the private interests of the publisher and author. For, in writing such a Foreword, the judge could readily be perceived as endorsing the publication and providing it with a judicial stamp of approval. Indeed, that perception of a judicial imprimatur is heightened considerably in this instance, since the subject matter of the book is the workings of the very court over which the judge presides and about which the judge has special knowledge and expertise.
Thus, it is not only the prestige of judicial office that is involved in this instance but the prestige of the particular judicial office held by the inquirer.
