Never The Mark Twain Shall Meet

From the Florida Judicial Ethics Advisory Committee

Opinion Number: 2019-30
Date of Issue: October 16, 2019

May a judge publish a work of fiction using a pen name?

ANSWER: Yes, as long as the judge’s writings do not cast doubt upon the judge’s impartiality, interfere with the performance of professional duties, or demean the judge’s office.

The inquiring judge has written a historical novel and inquires whether the Code of Judicial Conduct allows the book to be published under a pen name.

The judge’s inquiry is similar to that in Fla. JEAC Op. 98-01, wherein the judge had written what was described as a “crime novel.” The 1998 opinion provides a history of prior inquiries regarding the authorship of books, but none of those inquiries involved works of fiction. This Committee perceived no difference, but cautioned the judge that the novel should not “cast reasonable doubt on the judge’s capacity to act impartially as a judge, demean the judicial office, or interfere with the proper performance of judicial duties.” See also Fla. JEAC Op. 10-12, wherein the judge wanted to publish a children’s book. The judge posing the current inquiry acknowledges having read JEAC Op. 98-01.

The Committee sees no ethical dilemma in the use of a pen name. If the practice was good enough for Mark Twain, Stendhal, Trevanian, and others, there is no reason to suspect that the inquiring judge cannot follow suit.

We are mindful of the cautionary language in Op. 98-01 regarding the potential for even fictional writings to demean the author’s judicial office. Fla. JEAC Op. 98-01 did not give explicit guidance as to what sort of fiction might cross this line. As one committee member observed, “The only way to make that kind of assessment is to read the whole book.” We conclude that the fact this judge proposes to write historical fiction – and not, presumably, a thinly-disguised roman à clef – should sufficiently insulate the book from any violations of the Canons, particularly since the judge’s name will not even appear as the author.

(Mike Frisch)