Impermissible Letters of Reference or Recommendation
There is a significant and disciplinable difference between a judge’s assertion of influence to obtain special consideration for a friend or acquaintance with business before the courts or other entities, and an ordinary letter of reference or recommendation. The former is never permissible, while the latter, with some caveats, may be permissible.
The Assertion of Influence for a Private Benefit
In Matter of Smith, 2014 NYSCJC Annual Report 207, the Commission admonished a judge who wrote a letter on judicial stationery to the State Parole Board, unsolicited by the Board, advocating on behalf of an incarcerated felon whose application for parole was scheduled for consideration. Public discipline was consistent with precedents of the Commission and the courts dating back to 1979.
Section 100.2(C) of the Rules prohibits a judge from lending the prestige of judicial office to advance the private interests of the judge or others. In the same vein, the rule prohibits a judge from testifying voluntarily as a character witness. (Testifying when subpoenaed to do so is permissible.) A request for special consideration on behalf of any person, made by a judge to another public official or agency, “is wrong, and always has been wrong.” Matter of Byrne, 47 NY2d (b), 420 NYS2d 70, 71 (Ct on the Jud 1979). As the Court of Appeals has stated:
[N]o judge should ever allow personal relationships to color his conduct or lend the prestige of his office to advance the private interests of others. Members of the judiciary should be acutely aware that any action they take, on or off the bench, must be measured against exacting standards of scrutiny to the end that public perception of the integrity of the judiciary will be preserved. There must also be a recognition that any actions undertaken in the public sphere reflect, whether designedly or not, upon the prestige of the judiciary. Thus, any communication from a judge to an outside agency on behalf of another, may be perceived as one backed by the power and prestige of judicial office. [Citations omitted.] Matter of Lonschein, 50 NY2d 569, 571 (1980).
For more than three decades, judges have been disciplined for transgressing this principle. For example, in Matter of Kiley, 74 NY2d 364 (1989), a judge was censured for orally requesting favorable treatment from prosecutors and another judge on behalf of acquaintances. In Matter of Martin, a judge was admonished for sending two unsolicited letters to sentencing judges in other courts on behalf of defendants awaiting sentencing. 2002 NYSCJC Annual Report 121. See also, Matter of Dixon, 47 NY2d 523 (1979); Matter of Sharlow, 2006 NYSCJC Annual Report 232; Matter of Engle, 1998 NYSCJC Annual Report 125; and Matter of Freeman, 1992 NYSCJC Annual Report 44, among others.
Consistent with these court and Commission decisions, the Advisory Committee on Judicial Ethics has repeatedly opined that a judge may not send an unsolicited letter on behalf of an inmate seeking parole, a criminal defendant prior to sentencing or an attorney facing disciplinary charges; but the judge may respond to an official request for his or her views, “provided that the response is based upon the judge’s knowledge of the defendant and is designated ‘personal and unofficial’” (Opinions 99-07, 97-92, 90-156, 89-73). But in no instance may the judge initiate communication with those entities in order to convey information about the accused. To do so would both be and appear to be improper, as it would use the prestige of judicial office to vouch for someone. Such impropriety would not be nullified by marking the letter “personal and unofficial.” In Smith, the judge conceded that while she had written prior letters to the Division of Parole offering her opinions on behalf of inmates, all those other letters were written in response to direct inquiries by the Division of Parole and involved inmates over whose trials she had presided and/or whom she had sentenced.
The “Ordinary” Letter of Reference or Recommendation
The matter of whether, when and under what circumstances a judge may write a reference letter has for years been the subject of Advisory Opinions, continuing education and training lectures, and articles. The answer almost always depends on the individual circumstances at play. Ultimately, there is no “ordinary” judicial recommendation letter.
The cautious judge will evaluate each request for a recommendation individually, consider the various ramifications and consult published Advisory Opinions before going forward. If the situation has not specifically been addressed by the Advisory Committee, requesting an opinion before providing a reference letter would be wise. If it is permissible for the judge to write the type of letter requested, it should be based on the judge’s personal knowledge of the individual and contain an honest appraisal of the individual’s character and abilities, such as a judge might provide for a former court employee in support of a job or law school application. Any such letter written on judicial stationery should be marked “personal and unofficial.” (Opinions 88-10, 06-10, 90-46, 95-153, 88-166, 91-14).
Sometimes, writing an otherwise permissible letter may raise an issue for the judge to address in another forum. For example, while generally a judge may write a reference letter for an applicant to law school, if the applicant or his/her relatives are involved in a pending case before the judge, the judge would be wise to disclose the relationship to all parties and attorneys. While generally a judge may provide a job recommendation for a former employee, presiding over future cases involving the former staff member’s new employer may be problematic and could trigger disqualification. (Opinions 10-07, 01-114). While generally a judge may submit a letter to the appropriate character and fitness committee on behalf of an applicant for admission to the bar, the judge may not do so on behalf of a disbarred attorney seeking readmission. (Opinion 95-75). While generally a judge may submit a reference to a coop board evaluating a potential purchaser, the judge should not do so if the coop, purchaser or resident are parties to litigation before the judge. (Opinion 98-103).
A judge who reviews the pertinent published opinions and applies common sense to a particular request for a recommendation will likely reach the same conclusion the Advisory Committee would if confronted with the same facts. Any reasonable doubt and lack of relevant precedent should engender a request for an Advisory Opinion.
From the 2014 Annual Report, pages 23-25.