RECOMMENDATIONS BY JUDGES

BY CYNTHIA GRAY

Key Issues in

Judicial Ethics

This paper was originally developed under grant #SJI-93-02B-C-270 from the State Justice Institute,

‘‘To Promote the Establishment and Support the Operations of State Judicial Ethics Advisory Com-

mittees.’’ Points of view expressed herein do not necessarily represent the official positions or policies

of the American Judicature Society or the State Justice Institute.

American Judicature Society

Seth S. Andersen

Executive Director

The Opperman Center at Drake University

2700 University Avenue

Des Moines, Iowa 50311

(800) 626-4089

FAX (515) 279-3090

Cynthia Gray

Director, Center for Judicial Ethics

Box 190, 3304 N. Broadway

Chicago, IL 60657

(773) 248-6005

FAX (773) 248-6015

Order #841

Up-dated 11/09

Other papers available in the Key Issues in Judicial Ethics series:

• Commenting on Pending Cases (6/01)

• Disqualification Issues When a Judge is Related to a Lawyer (5/01)

• Ethical Issues for New Judges (7/03)

• Ethics and Judges’ Evolving Roles Off the Bench: Serving on Governmental Commissions (2/02)

• A Judge’s Attendance at Social Events, Bar Association Functions, Civic and Charitable Functions,

and Political Gatherings (8/98)

• Organizations that Practice Invidious Discrimination (7/99)

• Political Activity by Members of a Judge’s Family (5/01)

• Real Estate Investments by Judges (1/01)

To order, visit www.ajs.org or call 1-800-626-4089

Founded in 1913, the American Judicature Society is an independent, nonprofit organization sup-

ported by a national membership of judges, lawyers, and other members of the public. Through

research, educational programs, and publications, AJS addresses concerns related to ethics in the courts,

judicial selection, the jury, court administration, judicial independence, and public understanding of

the justice system.

CONTENTS

INTRODUCTION 1

THE GENERAL RULE – EMPLOYMENT, BAR ADMISSION, AND EDUCATION 2

Employment 2

Bar admission 3

Appointments 3

Education 4

Awards 4

Miscellaneous 5

Evaluating attorneys 5

Certification 5

Appointment lists and government contracts 6

CONDITIONS AND CAVEATS 7

Personal knowledge 7

Acting as a reference 8

Promoting a business 9

Recipient or subject 9

Judicial stationery 10

“To Whom It May Concern” letters 11

Other caveats 12

JUDICIAL SELECTION 13

LETTERS IN ADJUDICATIVE PROCEEDINGS 17

Sentencing 17

Pardon and parole 18

Disciplinary proceedings 19

Other proceedings 21

SUMMARY 22

INTRODUCTION

Providing recommendations as a favor for col-

leagues or friends is a common practice. However,

judicial ethics standards require judges to think

twice before engaging in activities they considered

routine before taking the bench.

This paper discusses the guidance judicial ethics

advisory committees have provided for judges decid-

ing whether to provide a recommendation. It

describes the general rule that allows judges, based

on personal knowledge, to furnish a letter of recom-

mendation or act as a reference for a person seeking

employment, admission to an educational institu-

tion or the bar, awards, appointment to the bench,

and similar situations. To ensure that the prestige of

judicial office is not being exploited, there are excep-

tions to that rule and guidelines for providing an

otherwise appropriate reference, which are also

noted.

Judges are usually prohibited, however, from

providing a letter of recommendation or acting as a

reference in investigatory or adjudicatory proceed-

ings. Thus, the paper discusses judicial ethics opin-

ions that advise judges, absent an official request, not

to write a letter to another judge in connection with

the sentencing of a defendant in a criminal matter, a

letter to a pardon and parole board concerning a

prisoner, a letter to be used in disciplinary proceed-

ings, and similar contexts.

Notes about the code of judicial conduct and

judicial ethics advisory committees

The ethical standards for judges are established

by the code of judicial conduct adopted in each

jurisdiction. The basis for the state and federal

codes is the Model Code of Judicial Conduct —

adopted by the American Bar Association in 1972

and revised in 1990 and 2007, although the juris-

dictions modify the model before adopting it. One

of the major changes in 2007 was to reduce the

number of canons from five to four, with num-

bered rules under each canon.

Over 40 states and the United States Judicial

Conference have judicial ethics advisory commit-

tees to which judges can submit inquiries regarding

the propriety of contemplated future action.

There are links to the web-sites of judicial ethics

advisory committees at www.ajs.org/ethics/

eth_advis_comm_links.asp.

THE GENERAL RULE –

EMPLOYMENT, BAR

ADMISSION, AND

EDUCATION

The provision of the code of judicial conduct

implicated by a judge’s writing a recommendation or

acting as a reference is Canon 2B in the 1990 model

code: “A judge shall not lend the prestige of judicial

office to advance the private interests of the judge or

others.” Commentary allows a judge “based on the

judge’s personal knowledge, [to] serve as a reference

or provide a letter of recommendation.” Similarly,

Rule 1.3 of the 2007 model provides: “A judge shall

not abuse the prestige of judicial office to advance

the personal or economic interests of the judge or

others,” with comment 3 expressly allowing a judge

to “provide a reference or recommendation for an

individual based upon the judge’s personal knowl-

edge.” See also Canon 2B, Utah Code of Judicial

Conduct (judge “may provide honest references in

the regular course of business or social life”).

Allowing judges to provide recommendations

recognizes that “judges are members of society, and

of the community at large, and . . . not every action

of a judge is intended, or could reasonably be per-

ceived, as an assertion of the prestige of judicial

office.” U.S. Advisory Opinion 73 (2009). The prac-

tice of providing recommendations within the legal

profession is so customary that, when done “by a

judge, it is less a function of the judicial position

than it is of the judge’s position within the legal

community at large.” Indiana Advisory Opinion

3-88.

Judges should not be precluded from doing things

legitimately done by others in society unless there is

an identifiable basis in the language of the Code of

Judicial Conduct to do so. Letters of recommenda-

tion are routinely asked of people who have attained

some level of competence in their field or some level

of acquaintance with the applicant. Writing such a

letter is often an imposition that many believe that

they have a professional or social obligation to

perform. Indeed, sometimes judges have special

knowledge that makes them uniquely qualified to

assess the suitability of an applicant for a position.

Massachusetts Advisory Opinion 94-1.

Judicial ethics advisory committees have also

cited practical considerations to support that inter-

pretation. A contrary rule “would prevent, for

example, a lawyer, or even a housekeeper, who has

worked directly for a judge, from obtaining the

judge’s recommendation when seeking other

employment, or a paralegal who has worked directly

for a judge from obtaining the judge’s recommenda-

tion when applying to a law school.” New York Advi-

sory Opinion 88-10. The code of judicial conduct

was not “intended to penalize those persons who

work with a judge by forbidding the judge from

commenting on their character or ability to a poten-

tial employer.” Arizona Advisory Committee 92-6.

Furthermore, “it is a prerequisite to the proper oper-

ation of many institutions that recommendations be

received from a cross section of the population and

there is no reason to exclude judges.” Maryland

Advisory Opinion 1977-5.

Finally, such recommendations are not consid-

ered voluntary testimony as a character witness,

which is prohibited by the code.

The act of making a professional recommendation for

employment . . . is not subject to the abuses presum-

ably targeted by the prohibition. A typical recom-

mendation will not involve public testimonials, thus

potentially detracting from the dignity of the office,

and cannot be exploited to deflect attention from the

merits of a factual contest and potentially affect the

outcome of a legal proceeding. Indiana Advisory

Opinion 3-88.

Therefore, subject to the conditions discussed

below, as long as a judge has personal knowledge of

the individual seeking the recommendation, advi-

sory committees have approved the practice of pro-

viding a recommendation regarding employment,

education, bar admission, professional awards, and

similar contexts.

Employment

A judge may:

• write a letter of recommendation for the judge’s

clerk who is leaving public employment after

working with the judge for several years (Cali-

fornia Advisory Opinion 40 (1988));

• write a letter of recommendation to an educa-

tional institution on behalf of an attorney who

has appeared before the judge and who is

leaving the practice of law to teach (California

Advisory Opinion 40 (1988));

• complete a letter of reference form for a former

law clerk applying for a position with the attor-

ney general’s office (Connecticut Informal Advi-

sory Opinion 2008-3);

• write a character reference letter on behalf of a

county supervisor in the division of youth serv-

ices who is applying for district supervisor

(Florida Advisory Opinion 75-30);

• write a letter as to the character and qualifica-

tions of an attorney applying to the U.S. Army

Judge Advocate General Corps (Florida Advi-

sory Opinion 77-10);

• act as a reference or furnish a letter of recom-

mendation for a person seeking employment

(Illinois Advisory Opinion 95-4);

• allow her name to be listed as a personal refer-

ence on an application for employment and

respond to inquiries (Kentucky Advisory

Opinion JE-87 (1996));

• submit a recommendation on behalf of a public

defender for employment as a prosecutor (Min-

nesota Advisory Opinion (2008));

• provide a letter of reference on behalf of an

associate law professor, who also appears before

the judge as an attorney, for promotion to a full

professorship (New York Advisory Opinion 93-

26);

• permit an attorney the judge has known since

law school to include the judge’s name as a

general reference in the resumé he is submitting

for a position at a local college (New York Advi-

sory Opinion 07-182);

• give a recommendation on behalf of a judicial

law clerk for employment as an attorney (Ohio

Advisory Opinion 95-5);

• provide a letter of recommendation on behalf

of a friend who wants to enter the ministry

(South Carolina Advisory Opinion 31-1996);

• write a letter of recommendation for individu-

als seeking employment (South Carolina Advi-

sory Opinion 5-1992);

• provide a letter of recommendation for a prose-

cutor who is applying for a position with a law

firm (Texas Advisory Opinion 222 (1998));

• write a letter of recommendation on behalf of

an attorney seeking employment even if the

potential employer has not requested such a

letter (Utah Informal Advisory Opinion 99-8);

• provide a letter of recommendation for an

employee of a county-operated, pre-trial release

and supervision program who has appeared in

the judge’s court and has applied for a position

with the federal probation system (Utah Infor-

mal Advisory Opinion 91-2); and

• write a letter of recommendation for employ-

ment for court personnel or for a personal

friend (Washington Advisory Opinion 86-12).

Bar admission

A judge may:

• give an affidavit of character for a law student

who is applying for admission to the bar

(Alabama Advisory Opinion 89-357; New York

Advisory Opinion 88-166);

• write a letter regarding the background and

character of someone who is applying for

admission to the bar (Florida Advisory Opinion

75-18);

• complete a questionnaire sent to the judge by

the Florida Board of Bar Examiners (Florida

Advisory Opinion 96-6);

• write a letter for an attorney for admission on

reciprocity to the bars in Wyoming and

Montana (New Jersey Advisory Opinion 45-91);

• complete the board of law examiner’s certificate

of moral character for an applicant seeking

admission to practice law in North Carolina

(North Carolina Advisory Opinion 07-3);

• allow a friend to list the judge as a reference on

a bar admission application (Pennsylvania Infor-

mal Advisory Opinion 5/25/04); and

• allow a law student to list the judge as a charac-

ter reference for the state bar examination (West

Virginia Advisory Opinion (January 12, 2000)).

Cf., Connecticut Informal Advisory Opinion 2008-15

(judge may not provide a letter of reference for use in

an adversarial character and fitness proceeding).

Appointments

A judge may:

• provide a letter of recommendation for a person

applying for an appointive position on a gov-

ernment agency or board (Arizona Advisory

Opinion 92-6);

• write a factual letter to the President regarding

an appointment to the board of directors of the

Legal Services Corporation (Florida Advisory

Opinion 93-32);

• write a letter of recommendation for an indi-

vidual seeking an appointment to a governmen-

tal position (South Carolina Advisory Opinion

5-1992); and

• answer an inquiry from an appointing officer

concerning the character and fitness of a candi-

date for appointment to any public office (U.S.

Advisory Opinion 59 (2009)).

Education

A judge may:

• provide a letter of recommendation to the

director of a law school admission’s office on

behalf of a former business client’s employee

with whom the judge had worked on cases as

an attorney (Connecticut Informal Advisory

Opinion 2009-22);

• write a letter of recommendation for a person

who is applying for entrance to law school

(Florida Advisory Opinion 79-3; Kentucky Advi-

sory Opinion JE-74; Nevada Advisory Opinion

JE04-004; New York Advisory Opinion 06-10;

Ohio Advisory Opinion 95-5);

• act as a reference or furnish a letter of recom-

mendation for a person seeking admission to a

college or a scholarship (Illinois Advisory

Opinion 95-4);

• give a recommendation for a relative or neigh-

bor for appointment to a military academy

(Maryland Advisory Opinion 1977-5);

• send a letter of recommendation to a college on

behalf of a high school student the judge has

known most of the student’s life (Nebraska

Advisory Opinion 07-4);

• write a letter of recommendation for a student

or prospective student for law school or college

admission and/or a scholarship (New Jersey

Guidelines on Extrajudicial Activities Addendum

A);

• send a letter of recommendation to a law school

on behalf of a friend’s child (Oklahoma Advisory

Opinion 02-7);

• write a letter of recommendation for a student

seeking admission to a college or professional

school (South Carolina Advisory Opinion

5-1992);

• write a letter of recommendation for a law

school candidate who interned in the judge’s

office with information regarding her responsi-

bilities and performance (South Carolina Advi-

sory Opinion 8-2009); and

• provide a reference for a domestic violence

advocate regularly involved in proceedings in

the judge’s court who is applying for law school

(West Virginia Advisory Opinion (September 17,

2004)).

Awards

A judge may:

• provide a letter of support for an attorney who

has been nominated to receive a professional

service award from a private organization (Con-

necticut Informal Advisory Opinion 2009-5);

• submit a letter to support the nomination of an

attorney for a bar association pro bono award

(New Jersey Advisory Opinion 2-07; New Jersey

Advisory Opinion 34-06; New Jersey Advisory

Opinion 9-99);

• write a letter in support of the nomination of a

former colleague for a professional award (New

York Advisory Opinion 08-92);

• write a letter at the request of a local bar associ-

ation to assist the association nominate an

attorney for an award given by the New York

State Bar Association (New York Advisory

Opinion 02-118);

• write a letter in support of a local family serv-

ices agency’s nomination for an annual award

from a newspaper (New York Advisory Opinion

08-175); and

• send a letter of recommendation for an attorney

nominated for a bar association award (North

Carolina Advisory Opinion 07-2).

But see New Jersey Advisory Opinion 11-05 (judge

may not send a letter supporting the nomination of

a mediator for the governor’s volunteer award).

Miscellaneous

A judge may:

• write a letter of recommendation for a former

staff attorney who has applied for a fellowship

that affords financial support to Harvard Law

School graduates who have secured a position

in the federal government (Florida Advisory

Opinion 2007-6);

• provide a letter to the department of elder

affairs on behalf of a professional guardian

seeking waiver of an examination requirement

(Florida Advisory Opinion 2005-4);

• provide a letter of good character on behalf of a

friend applying for a license to practice

acupuncture to the state department of educa-

tion (New York Advisory Opinion 93-12); and

• write a letter of reference to the board of a co-

operative building on behalf of an individual

seeking an apartment (New York Advisory

Opinion 98-103).

Evaluating attorneys

Most opinions on the issue have advised that a

judge may express a professional evaluation or

opinion of a practicing attorney for use by a legal

rating periodical even where the attorney frequently

appears before the judge — provided the evaluation

will remain confidential and will not be used to

create the impression that the judge endorses a par-

ticular lawyer. For example, noting that the Martin-

dale-Hubbell directory prominently explains that its

ratings are based upon confidential recommenda-

tions from lawyers and judges in the city or area

where the lawyer practices, the Maryland advisory

committee concluded that a judge may respond to a

request to rate an attorney as “one of many unnamed

judges from unnamed courts playing a role in rating

lawyers, which role will never be fully disclosed.”

Maryland Advisory Opinion 1977-5. Accord Alabama

Advisory Opinion 92-448; Alabama Advisory

Opinion 83-180; Florida Advisory Opinion 73-15;

Kansas Advisory Opinion JE-148 (2006); Nebraska

Advisory Opinion 91-1; New York Advisory Opinion

89-119.

In at least two states, however, a judge is prohib-

ited from rating attorneys for Martindale-Hubbell.

New Jersey Guidelines on Extrajudicial Activities

Addendum A; South Carolina Advisory Opinion 4-

2004. The South Carolina committee explained:

While a judge may have no intention of favoring one

lawyer over another, allowing a judge to rate the

lawyers who may appear before him could create the

appearance of partiality. Publicized ratings which

indicate that a judge believes one lawyer to be supe-

rior, in one way or another, to another lawyer, could

certainly create the appearance of partiality.

Certification

Advisory committees have stated that a judge

may provide a reference for an attorney in connec-

tion with certification as a specialist in an area of law,

as long as the reference is confidential. Thus, a judge

may:

• submit a written statement giving the judge’s

opinion of an attorney’s professionalism in

response to a request by the attorney’s counsel

in a specialization certification proceeding, even

if the attorney has a case pending before the

judge (Arizona Advisory Opinion 02-4);

• sign a confidential certificate of reference for

members of the bar applying for certification

under the Florida Bar Designation Plan

(Florida Advisory Opinion 78-24);

• act as a reference in an attorney’s certification

process by the National Board of Trial Advo-

cacy (Nebraska Advisory Opinion 94-2);

• be listed as a reference by an attorney seeking

state trial certification or National Board of

Trial Advocacy certification and respond on the

form provided (New Jersey Guidelines on Extra-

judicial Activities Addendum A);

• write a letter nominating an attorney whom the

judge has known for several years through bar

association activities for a position on the com-

mercial panel of the American Arbitration Asso-

ciation (New York Advisory Opinion 93-129);

and

• make a written recommendation for an appli-

cant seeking certification as an attorney special-

ist when requested to do so by a certifying

agency even if the applicant appears before the

judge (Ohio Advisory Opinion 98-4).

The Arizona committee explained that, although

an attorney asks for the judge’s opinion to serve the

attorney’s self-interest in certification proceedings,

“the result is still intended to assure that only attor-

neys with high ethical and professional standards

become certified and re-certified,” noting that the

judge would not be commenting on an attorney’s

character or reputation but on specific behavior

observed in his courtroom. Arizona Advisory

Opinion 02-4. The committee emphasized that “the

mere disclosure of the judge’s opinion does not

render the judge biased.”

Judges will always form an opinion of the attorneys

who practice before them. Expressing that opinion as

to a specific attorney does not render the judge biased

any more than would the formation of the opinion in

the first place. Obviously, if the opinion held by the

judge, whether expressed or not, is so strong as to

reflect an inability to be fair and impartial, then that

judge must recuse himself.

But see New Jersey Advisory Opinion 16-01 (judge

should not fill out a questionnaire about an attorney

seeking admission to the American Academy of Mat-

rimonial Lawyers); New Jersey Advisory Opinion 3-06

(family division judge may not complete a question-

naire from the American Academy of Matrimonial

Lawyers seeking information regarding an applicant

for a fellowship); South Carolina Advisory Opinion

26-2006 (judge may not submit a form reference for

an attorney to the American Board of Professional

Liability Lawyers).

Appointment lists and government contracts

Advisory committees have given judges permis-

sion to write letters for attorneys trying to get on eli-

gibility lists for court appointments.

• A judge may write a recommendation for an

attorney for membership on the panel of attor-

neys appointed to provide counsel in criminal

cases to indigent defendants. New York Advisory

Opinion 96-32.

• A judge may write a reference letter for an

attorney seeking admission to a law guardian

panel without first being solicited by the

appointing authority. New York Advisory

Opinion 05-29.

• A judge may write a recommendation letter for

a lawyer who seeks to be placed on a federal

court appointments list. Pennsylvania Informal

Advisory Opinion 6/23/03.

Further, most opinions that have addressed the

issue allow a judge to make recommendations about

attorneys in the context of a government contract.

• A judge may provide a recommendation based

on merit as to specific attorneys to serve as con-

tract counsel representing indigent defendants

in the circuit court. Alabama Advisory Opinion

97-672.

• A judge may complete a confidential evaluation

form for private attorneys that the city will use,

with other information, to determine whether

to renew the attorneys’ contracts to provide

public defender services. Arizona Advisory

Opinion 00-4.

• A judge may write a letter expressing his views

concerning the performance and professional

conduct of attorneys affiliated with an organiza-

tion that is seeking a contract with a municipal-

ity to provide legal representation for indigent

criminal defendants, but should not express an

opinion as to whether the organization’s bid

should be accepted or a particular contract

entered into and should not sign a form letter

provided by the organization. New York Joint

Advisory Opinion 01-100 and 01-101.

The Arizona committee acknowledged that “any

evaluation of an attorney by a judge may be per-

ceived as casting doubt on a judge’s appearance of

fairness and impartiality.” Arizona Advisory Opinion

00-4. However, the committee also noted that

judges “have historically provided public evaluations

of lawyers,” for example, by ruling on whether attor-

neys fees or other sanctions should be imposed for

lawyer misconduct, and that “lawyers have always

been aware that a judge’s evaluation may impact the

lawyer’s career.” The committee concluded that “so

long as the judge’s evaluation is not the sole basis for

the hiring decision, and so long as the evaluation is

not abused,” the evaluation was permitted.

Judges are perhaps in the best position to observe and

evaluate lawyer performance as it relates to the

administration of justice. . . . [T]he public appreciates

the court’s integral role in the administration of

justice and there is little danger, unless there is evi-

dence that the evaluation process is abused, that the

public’s perception of the court’s integrity or impar-

tiality will suffer by allowing judges to participate in

the formal process of evaluating lawyers who appear

before them regularly, even if the evaluations are con-

fidential. Moreover, judicial participation in the eval-

uation process is consistent with Canon 4B, under

which judges are encouraged to participate in activi-

ties that are geared toward improving the administra-

tion of justice.

In contrast, the Connecticut committee advised

that a juvenile judge may not provide references in

response to form questionnaires for attorneys

seeking contracts to provide representation to chil-

dren and indigent respondents in neglect and termi-

nation of parental rights proceedings in juvenile

court. Connecticut Advisory Opinion 2009-15. The

committee acknowledged “the need for the Com-

mission on Child Protection to evaluate attorneys on

the basis of merit in the process of awarding con-

tracts,” but stated “compliance with the current

process would put Judicial Officials in the untenable

position of violating the Code.” It noted that many

juvenile courts in the state have only one judge

assigned to each court location, that the applicants

appear regularly before the juvenile judges, that “the

process is not likely to remain confidential,” and that

“participation in this process would require recusal

both presently and in the future with respect to any

case handled by the contract attorneys.” See also

Nevada Advisory Opinion JE04-004 (judge may not

write a letter to a county commission in support of

a candidate seeking appointment as district attorney

but may privately respond to inquiries from the

county commission to provide further background

about the candidate’s qualifications); New York Advi-

sory Opinion 91-59 (judge may not provide a letter

of reference for a law firm to the municipal health

and hospital corporation at the firm’s request, but if

contacted directly by the agency, may give an

opinion about the firm); New York Advisory Opinion

02-26 (judge should not write a letter of recommen-

dation encouraging an appointing authority to

appoint an attorney to a quasi-judicial vacancy but,

if the appointing authority contacts her, may set

forth her observations concerning the abilities of the

candidate in relation to the position without recom-

mending that the appointment be made).

CONDITIONS AND CAVEATS

Personal knowledge

The primary condition placed on a judge writing

a letter of recommendation or acting as a reference is

that the judge must have substantial personal knowl-

edge of the subject of the reference. The advisory

committee for federal judges explained that “when-

ever the relationship between the judge and the

person seeking the recommendation is such that the

judge is in no better position than many others

would be to evaluate that person,” the recommenda-

tion was probably requested because of the prestige

of the judicial office, and the judge should refuse the

request. U.S. Advisory Opinion 73 (2009). The

Maryland advisory committee stated:

If the judge senses that the decision maker would be

genuinely assisted by the judge’s contribution of

special knowledge and would be so assisted even if the

source of that knowledge were not a judge, the “tilt”

is in one direction; if the judge senses that the deci-

sion maker would be primarily impressed by the

judge’s name and office, the “tilt” is decidedly in the

other direction. Maryland Advisory Opinion 1983-12.

The committee concluded that, if a judge is in

doubt, he is “well advised” to err on the side of

declining to provide a recommendation.

The Nevada committee warned that a judge

should not write a letter of recommendation when

the judge possesses no unique knowledge of the can-

didate and others could provide the same informa-

tion. Nevada Advisory Opinion JE04-004. Similarly,

in New Jersey, judges have been warned never to give

a recommendation “unless he or she has substantial

personal knowledge of the applicant, gathered over a

substantial period of time,” adding “recommenda-

tions should never be provided solely as a favor for

friends or relatives.” New Jersey Guidelines on Extra-

judicial Activities Addendum A.

For example, the Massachusetts committee

advised a judge not to write a letter of recommenda-

tion for a neighbor’s nephew, whom the judge had

never met, noting “in such a situation, the weight of

the recommendation” depends on the judicial status

because the judge has “no relevant knowledge or

information relating to the applicant.” Massachusetts

Advisory Opinion 94-1. Similarly, the California

committee stated that a judge may not write a letter

on behalf of a person who appeared before the judge

as a juvenile and who is seeking employment with a

state agency. California Advisory Opinion 40 (1988).

Although the judge had had occasion to see the

person mature since that appearance and believed

that the individual was now responsible, the com-

mittee concluded that nothing in the inquiry indi-

cated that the judge was familiar with the person’s

job skills, suggesting that the letter was requested to

inject the prestige of office into the job application

process.

In Public Admonishment of Coates (California

Commission on Judicial Performance December 2,

2009) (http://cjp.ca.gov/), the California Commis-

sion on Judicial Performance found that a judge

“went beyond expressing the judge’s personal obser-

vations as to his former bailiff’s qualifications” when

he sent a memorandum to the under-sheriff that

suggested that there were problems with the sheriff

department’s field training program and that incor-

porated attached e-mails from a deputy sheriff.

Therefore, the Commission rejected the judge’s

argument that he had merely provided a permitted

letter of recommendation when he sent the memo-

randum on behalf of his former courtroom bailiff in

connection with the sheriff department’s decision

whether to keep the former bailiff in the training

program.

Acting as a reference

Several judicial ethics committees require or

suggest that, rather than agree to write a letter of rec-

ommendation, a judge should permit himself or

herself to be listed as a reference and respond to any

inquiries received from an educational institution or

potential employer. The advisory committee for

federal judges noted that “some judges have adopted

a policy of inviting the applicant to list the judge as

a reference, instead of initiating letters of recom-

mendation, with the understanding that, if

requested to do so, the judge would respond with

information known to the judge concerning the

applicant.” U.S. Advisory Opinion 73 (2009). See

also Louisiana Advisory Opinion 71 (1986) (judge

may not write a letter of recommendation but may

allow his name to be listed as a reference and

respond if the employer or institution requests a rec-

ommendation); Maryland Advisory Opinion 1982-

12 (judge should consider suggesting that the person

to whom a recommendation would be addressed

request the information, to which request the judge

could respond).

In New Jersey, whether a judge may write an

unsolicited letter of recommendation or should

simply be listed as a reference depends on the recip-

ient. New Jersey Guidelines on Extrajudicial Activities

Addendum A. For law schools and colleges, which

do not ordinarily have procedures for soliciting

letters of recommendation, the New Jersey rule pro-

vides that a judge may write a letter upon request of

the applicant without any inquiry from the school.

If the circumstances involve a potential private or

public sector employer, however, a judge may not

write an unsolicited letter but may allow an individ-

ual to list the judge as a reference and write in

response to a request, preferably in writing, from the

employer. The New Jersey Supreme Court publicly

censured a judge for, in addition to other miscon-

duct, giving an unsolicited, favorable reference to the

deputy public defender for his former law clerk. In

the Matter of DeBello, Order (New Jersey November

16, 2009) (www.judiciary.state.nj.us/pressrel/

D-13-09%20DeBello%20Censure%20ACJC.pdf).

(The order does not describe the judge’s conduct;

the findings of the Advisory Committee on Judicial

Conduct are at www.judiciary.state.nj.us/press-

rel/08-116%20%20DeBello%20Presentment.pdf).

Other states in which judges are generally

allowed to provide letters of recommendation have

noted situations in which it is more appropriate for

a judge simply to allow the subject to list the judge

as a reference than to write the letter.

• A judge may not provide a letter of recommen-

dation to the state’s U.S. Senators about a

person applying for a position with the federal

court system but may offer to be listed as a ref-

erence and provide a reference if contacted.

Connecticut Advisory Opinion 2009-13.

• A judge may not voluntarily provide a reference

in support of an attorney’s application to adopt a

child that will become part of the file that will be

considered in the adoption matter by a court in

the same county where the judge presides. But,

because the applicant is well known to the judge

and occasionally appears in the judge’s court, the

judge may permit the applicant to submit her

name to the adoption agency as a reference and

respond to an inquiry by the agency. New York

Advisory Opinion 08-211.

• A judge who is permanently assigned to a

felony criminal court may not send a letter of

recommendation to the district attorney regard-

ing the application of a law student for a

summer position but may authorize the appli-

cant to use the judge as a reference and respond

to a request by the district attorney for infor-

mation or provide the applicant with a “to

whom it may concern” letter of recommenda-

tion. New York Advisory Opinion 88-53.

Promoting a business

Another limitation on recommendations pro-

hibits a judge from writing a letter that will be used

to promote an individual’s business interests.

Nebraska Advisory Opinion 07-4; North Dakota

Advisory Opinion 92-1; Virginia Advisory Opinion

06-1. For example, a judge may not:

• provide a letter praising the skills and abilities

of an attorney to be included in an advertising

brochure for a litigation consulting business

(California Advisory Opinion 40 (1988));

• provide a testimonial that the media consulting

company the judge used for her campaign

would place on its web-site (Louisiana Advisory

Opinion 222 (2009));

• provide a letter of reference to a bank on behalf

of a friend who is seeking financing for a busi-

ness (New York Advisory Opinion 89-15);

• provide a letter supporting a private business in

its bid to continue to provide services to a

municipality (New York Advisory Opinion 97-16);

• provide a letter of reference to a friend to be

used in the promotion of the friend’s real estate

business (New York Advisory Opinion 05-126);

• provide a letter of reference to help a person

obtain financing for a commercial treatment

facility particularly when the judge could make

referrals to the facility (Utah Informal Advisory

Opinion 91-2);

• endorse a friend’s character for use in an adver-

tising flyer for the friend’s business (Washington

Advisory Opinion 87-4); or

• make a recommendation in support of a commer-

cial venture (U.S. Advisory Opinion 73 (2009)).

Recipient or subject

A letter of recommendation may be considered

inappropriate if the recipient is a party in litigation

pending before the judge, for example, an attorney,

law firm, or government office that frequently repre-

sents parties before the judge. Commentary to

Canon 2 of the Alabama Canons of Judicial Ethics

specifically states that a letter of recommendation

“should not be written if the recipient is engaged in

litigation before the judge or it is likely that the

recipient will be engaged in proceedings that would

ordinarily come before the court.” Discussing that

provision, an advisory opinion explained that the

recipient of the letter “might feel coerced by the

judge’s letter” or “would feel that by acting favorably

on the judge’s recommendation he could influence

the judge” in pending litigation. Alabama Advisory

Opinion 86-269. See also Connecticut Informal Advi-

sory Opinion 2009-5 (judge may provide a letter of

support for an attorney nominated to receive a pro-

fessional service award from a private organization

unless, inter alia, the nominated attorney, members

of her law firm, or the organization have an appear-

ance before the judge at the time the recommenda-

tion is provided or within a reasonable period before

or after); Illinois Advisory Opinion 95-4 (judge

should not provide a recommendation to a prospec-

tive employer if the judge knows the prospective

employer is a named party in litigation pending

before the judge).

For example, the New York advisory committee

determined that a judge who is permanently

assigned to a felony criminal court may not send a

letter of recommendation to the district attorney

regarding the application of a law student for a

summer position in the district attorney’s office.

New York Advisory Opinion 88-53. The committee

concluded that, because the district attorney’s office

constantly appears before the judge, a letter to the

district attorney “might appear to compromise the

judge’s independence or impartiality and may seem

coercive with respect to the District Attorney.”

However, the committee stated that the judge may

authorize the applicant to use the judge as a refer-

ence and respond to a request by the district attorney

for information or provide the applicant with a “to

whom it may concern” letter of recommendation.

The Indiana committee advised that a judge

should consider whether a recommendation on

behalf of an individual seeking employment with a

law firm or government office that frequently prac-

tices in the judge’s court might be given more

meaning than is proper or even create a challenge to

the judge’s impartiality if the individual is hired and

appears before the judge. Indiana Advisory Opinion

3-88. Similarly, New Jersey judges have been cau-

tioned to avoid making recommendations for

employment to law firms actively practicing in their

jurisdiction. New Jersey Guidelines on Extrajudicial

Activities Addendum A. The guidelines note that

“there may be circumstances that require it, e.g.,

where such firm solicits your opinion about

someone who has just served as your law clerk,” but

cautioned judges “to avoid as best you can the

impression that might otherwise be given that pres-

sure is being exerted on the firm.”

Some committees have cautioned against fur-

nishing letters of recommendation in connection

with government employment that might suggest

inappropriate political activity. For example, the

Kentucky judicial ethics committee stated that a

judge should hesitate before giving a reference in

connection with employment with any branch of

government, also warning against letters where the

position sought is a sensitive one that might prove

embarrassing to the judge or the judiciary. Kentucky

Advisory Opinion JE-74 .

In New Jersey, judges have been advised that,

when writing a letter of recommendation that has

been solicited by a public sector employer, a judge

“must avoid being perceived as a supporter of or active

in any political party or activity or any branch or

faction of a party.” New Jersey Guidelines on Extraju-

dicial Activities Addendum A. The New Jersey

Supreme Court publicly censured a judge for, in addi-

tion to other misconduct, making an unsolicited tele-

phone call to the deputy public defender regarding his

former law clerk’s interest in working for the office of

law guardian. In the Matter of DeBello, Order (New

Jersey November 16, 2009) (www.judiciary.state.nj.

us/pressrel/D-13-09%20DeBello%20Censure%20

ACJC.pdf). (The order does not describe the judge’s

conduct; the findings of the Advisory Committee on

Judicial Conduct are at www.judiciary.state.nj.us/

pressrel/08-116%20%20DeBello%20Presentment.pdf).

Recommendations related to law enforcement

positions also raise concerns. The Connecticut advi-

sory committee stated that a judge may serve as a ref-

erence for a person applying for a position as a police

officer with one or more municipal police depart-

ments only if the police department and the hiring

authority are not named parties in cases pending

currently and for a reasonable period after the sub-

mission of the letter of recommendation. Connecti-

cut Informal Advisory Opinion 2009-8. The New

York advisory committee stated that a judge should

not write a letter of recommendation for a police

officer where it appears likely that the officer will be

a witness or otherwise involved in cases before the

judge. New York Advisory Opinion 01-37. Noting

“the inherent question of credibility that applies to

any witness, and the centrality of police officer testi-

mony in most criminal prosecutions,” the commit-

tee concluded that a personal recommendation may

give rise to a perception of judicial partiality. See also

Washington Advisory Opinion 95-16 (new judge who

was a chief deputy prosecutor may be listed as a ref-

erence for a police officer applying to be police chief

for a city outside of the judge’s jurisdiction if the

judge does not refer to the judicial title or include

her work address).

Judicial stationery

The majority rule permits a judge to use judicial

stationery to write a letter of recommendation. The

codes of judicial conduct in several states expressly

allow the use of official letterhead.

• Commentary to the California code allows a

letter of recommendation to “include the

judge’s title and be written on stationery that

uses the judicial title.”

• Commentary to the Florida code permits a

judge to “use judicial letterhead to write charac-

ter reference letters when such letters are other-

wise permitted under this Code.”

• Commentary to the West Virginia code pro-

vides that a judge’s reference or personal recom-

mendation may be “on official letterhead,

which need not bear the words ‘personal and

unofficial.’”

In addition, judicial ethics committees in several

states advise that any letter of recommendation that is

appropriate for a judge to write may be written on

official stationery. The Indiana committee concluded

that an ordinary recommendation from a judge, even

if drafted on court stationery, is not an exploitation of

the judicial office that the code of judicial conduct is

designed to prevent (Indiana Advisory Opinion 3-88),

while the Maryland committee noted that “an impor-

tant part of any recommendation is a description of

the person giving it and use of judicial stationery

would not be inappropriate” (Maryland Advisory

Opinion 1977-5). Accord Nevada Advisory Opinion

JE04-004; Oklahoma Advisory Opinion 02-7; Pennsyl-

vania Advisory Opinion 98-1.

Several states have adopted a variation of this

rule that allows a judge to use judicial stationery for

a letter of recommendation but requires the judge to

add the words “personal and unofficial.” See

Nebraska Advisory Opinion 07-4; New York Advisory

Opinion 93-26. Commentary to the Arkansas code

of judicial conduct provides: “The judge may use

official letterhead if the judge indicates that the ref-

erence is personal and if there is no likelihood that

the use of the letterhead would reasonably be per-

ceived as an attempt to exert pressure by reason of

the judicial office.” Similarly, Virginia code com-

mentary states: “When using court stationery for

letters of reference an indication should be made

that the opinion expressed is personal and not an

opinion of the court.” The Connecticut advisory

committee stated that a judge may use judicial

branch letterhead, but, if he does so, the letter must

indicate that the opinions expressed were the per-

sonal opinions of the judge. Connecticut Informal

Advisory Opinion 2009-22.

In some states, whether a judge may use official

stationery depends on whether the recommendation

is written on behalf of a personal friend or on behalf

of an individual the judge knows in an official capac-

ity. The Washington judicial ethics committee has

advised that a judge may use official letterhead for a

recommendation for court personnel or for attor-

neys who have appeared before the judge but that a

recommendation for a person the judge knows in a

non-judicial capacity should be written on plain let-

terhead and should not reveal the judicial capacity.

Washington Advisory Opinion 86-12; Washington

Advisory Opinion 93-24. Similarly, in Minnesota, a

judge may not use official judicial stationery for a

recommendation containing information not

obtained in the ordinary course of judicial or official

court activities. Minnesota Advisory Opinion (2008).

Accord Maine Advisory Opinion 98-3. See also North

Dakota Advisory Opinion 92-1 (suggesting a judge

avoid using official stationery unless writing an

employment reference for court personnel).

In another variation on the rule, the Arizona advi-

sory committee stated that a judge may use judicial

stationery to write an employment recommendation

for an applicant who is a lawyer or former employee

but that, when recommending a personal friend, the

judge is required to place the caption “PERSONAL

AND UNOFFICIAL” on the face of the letter.

Arizona Advisory Opinion 92-6. The committee stated

it was neither endorsing nor condemning the use of

official stationery for personal references.

Finally, in some states, a judge may not use offi-

cial stationery for any letter of recommendation to

ensure that the recommendation does not imply that

the judge is using the prestige of office to advance

private interests. Louisiana Advisory Opinion 76

(1989); Louisiana Advisory Opinion 71 (1986); New

Jersey Guidelines on Extrajudicial Activities Adden-

dum A; North Carolina Advisory Opinion 07-2; South

Carolina Advisory Opinion 5-1992. The North Car-

olina committee, for example, stated that, when

writing a letter of recommendation, a judge should

use personal stationery rather than official letterhead

but may refer to the judicial office in the letter when

it is necessary to explain the context of the judge’s

observations of the individual. North Carolina Advi-

sory Opinion 07-2. The committee did permit a

judge to use official stationery if the request comes

from a state agency or official requesting the judge’s

input in an official capacity.

“To Whom It May Concern” letters

To prevent a recommendation from being used

for an unintended or unknown purpose, judicial

ethics committees advise that a judge should address

the letter to a specific institution or individual and

may not write a letter addressed “to whom it may

concern.” Minnesota Advisory Opinion (2008);

Nebraska Advisory Opinion 07-4; North Carolina

Advisory Opinion 07-2; Texas Advisory Opinion 222

(1998); Virginia Advisory Opinion 06-1. Similar con-

ditions require a judge to address and mail a letter

directly to the party or organization for whom the

information is being written. Oklahoma Advisory

Opinion 02-7; Pennsylvania Formal Opinion 98-1;

Virginia Advisory Opinion 06-1. Other advisory

committees have warned that a judge should have a

reasonable assurance that a recommendation will be

treated as confidential and will not be distributed by

the recipient. Nebraska Advisory Opinion 07-4; Vir-

ginia Advisory Opinion 06-1.

The Oklahoma and Pennsylvania judicial ethics

committees have created an exception that allows a

judge to write a “to whom it may concern” letter for

a personal employee of the judge, such as a law clerk,

who is seeking other employment. Oklahoma Advi-

sory Opinion 02-7; Pennsylvania Formal Opinion 98-

1. See also New York Advisory Opinion 97-110 (judge

may provide “to whom it may concern” letter of ref-

erence for a court interpreter she has known for 10

years); New York Advisory Opinion 88-53 (judge

should provide applicant to the district attorney’s

office with “to whom it may concern” letter of rec-

ommendation).

Other caveats

Two committees have advised against judges’

making recommendations on the telephone in most

circumstances. The Virginia committee noted that,

“if a judge initiates a telephone call in order to rec-

ommend someone, there is a greater risk that the call

may be perceived as coercive or as an improper use

of judicial prestige.” Virginia Advisory Opinion 06-1.

Therefore, the committee stated, a judge “should

make a recommendation in writing, or by telephone

in response to an inquiry from the decision maker,”

initiating a call “only if the surrounding circum-

stances are such that the judge is reasonably certain

that the call will not be perceived as coercive or

improper” and the judge emphasizes that the call is

personal, not official court business. Similarly, in

New Jersey, judges have been advised not to give a

recommendation by telephone unless that is clearly

the appropriate form of response, for example, when

the executive branch solicits judges for their opinion

about lawyers being considered for the bench or

other public employment or when law firms call for

a reference about a former law clerk. New Jersey

Guidelines on Extrajudicial Activities Addendum A.

Some judicial ethics committees have advised

judges to include disclaimers in their letters of rec-

ommendation.

• A judge should consider including a disclaimer,

such as “this letter is not intended as an

endorsement of the private or political inter-

ests” of the individual on whose behalf it was

written. North Dakota Advisory Opinion 92-1.

• A letter written for a friend should state that

the letter is being written “purely as a friend.”

Washington Advisory Opinion 86-12.

• A letter should include a disclaimer stating that

the judge is not attempting to lend the prestige

of the office to advance the private interests of

others. Washington Advisory Opinion 87-10.

• A letter written for an attorney who has

appeared before the judge should clearly state

that it is based on the judge’s personal observa-

tions and does not necessarily reflect the views

of other members of the court. Washington

Advisory Opinion 87-10.

Other opinions have warned judges not to

promote one candidate over all other applicants.

• A judge may write a character reference for a

person applying for an appointive position on a

government agency that does not endorse one

candidate over another. Arizona Advisory

Opinion 92-6 .

• A judge should not follow up a letter of recom-

mendation with any activity that smacks of a

campaign on behalf of the applicant. Massachu-

setts Advisory Opinion 94-1.

• A judge may write a letter of recommendation

on behalf of candidate for a bar association

office as long as the letter does not actively

promote the lawyer. Pennsylvania Informal

Advisory Opinion 7/17/02.

Finally, committees have advised that a letter of

recommendation:

• should be limited to what the judge personally

has observed and should not include the judge’s

opinion about the individual’s reputation or

convey what others have told the judge

(Nebraska Advisory Opinion 07-4; Virginia

Advisory Opinion 06-1); and

• should include a statement of the source and

extent of the judge’s personal knowledge

(Pennsylvania Formal Advisory Opinion 98-1).

JUDICIAL SELECTION

Commentary to Canon 2B of the 1990 model

code provided that “judges may participate in the

process of judicial selection by cooperating with

appointing authorities and screening committees

seeking names for consideration, and by responding

to official inquiries concerning a person being con-

sidered for a judgeship.” Similarly, comment 3 to

Rule 1.3 of the 2007 model code provides:

Judges may participate in the process of judicial selec-

tion by cooperating with appointing authorities and

screening committees, and by responding to inquiries

from such entities concerning the professional quali-

fications of a person being considered for judicial

office.

The Arizona judicial ethics committee con-

cluded that the proscription against lending the

prestige of judicial office did not prohibit judges

from making recommendations regarding judicial

appointments because the “private interests of

others” does not directly or indirectly refer to the

judicial selection process. Arizona Advisory Opinion

87-1. Although the California advisory committee

did consider such a judicial selection recommenda-

tion as clearly intended to advance the private inter-

ests of the candidate, it concluded that a

recommendation was appropriate under the permis-

sion the code gives judges to participate in the

improvement of the administration of justice. Cali-

fornia Advisory Opinion 40 (1988). The committee

explained that, where a judge’s letter would offer spe-

cific knowledge of the personal and professional

qualities pertinent to performance as a judge, a judge

is “uniquely able to contribute insight to the judicial

selection process and thereby to the administration

of justice,” without casting doubt on the judge’s

impartiality in hearing any issue. Similarly, the U.S.

judicial ethics committee reasoned that cautions

against lending the prestige of office to advance

private interests “are consistent with judges provid-

ing, when asked, recommendations and evaluations,

based on their insight and experience; judges may in

this way further the public interest in a judiciary

characterized by quality and integrity.” U.S. Advisory

Opinion 59 (2009).

Finally, the Maryland advisory committee con-

cluded that a recommendation submitted in the

judicial selection process does not violate the limits

on a judge engaging in political activity because the

judicial appointments process is designed to be as

“nonpolitical” as possible and a letter of recommen-

dation cannot be “analogized” to active political

activity. Maryland Advisory Opinion 1980-1.

Thus, a judge may:

• write a letter of support regarding a potential

judicial nominee to a nominating commission

and respond either orally or in writing to

inquiries from members of the commission or

the governor (Arizona Advisory Opinion 87-1);

• respond to judicial selection inquiries, provide

recommendations (including a general character

reference) relating to the evaluation of a person

being considered for a judgeship, and otherwise

participate in the process of judicial appoint-

ment (California Advisory Opinion 40 (1988));

• act as a reference and furnish a letter of recom-

mendation for a person seeking a federal judge-

ship (Illinois Advisory Opinion 93-9);

• send a letter of recommendation to the execu-

tive council in support of a nominee for

appointment to the judiciary (Massachusetts

Advisory Opinion 95-9);

• furnish a letter of recommendation to a judicial

nominating commission (Nebraska Advisory

Opinion 90-2);

• write a letter to a judicial nominating commis-

sion for a judge who has applied for appoint-

ment to a judicial vacancy (New Mexico

Advisory Opinion 05-3);

• write a letter on behalf of an individual seeking

appointment to a federal judgeship (Ohio Advi-

sory Opinion 95-5);

• write a letter on behalf of another judge seeking

reappointment at the request of the screening

panel or selection committee or in response to a

public solicitation in the local legal newspaper

(New York Advisory Opinion 98-123);

• write a letter of recommendation to the judicial

nominating commission on behalf of an appli-

cant for a judicial position (Oklahoma Advisory

Opinion 02-1);

• write a letter of recommendation for another

judge who has been nominated to the federal

bench (Pennsylvania Informal Advisory Opinion

2/16a/05);

• write a reference letter recommending a former

law clerk being considered for judicial appoint-

ment by the governor’s appointment committee

(Pennsylvania Informal Advisory Opinion

6/6/02);

• respond to an inquiry from an appointing offi-

cial or committee as to the character and fitness

of a candidate for the judiciary (South Carolina

Advisory Opinion 9-1989);

• provide information about a judicial candidate

to a screening committee if requested by the

committee (South Carolina Advisory Opinion

14-2009);

• write a letter of recommendation for a fellow

judge who has applied for another judicial posi-

tion (Texas Advisory Opinion 222 (1998));

• respond to inquiries from judicial nominating

commissions (Utah Informal Advisory Opinion

94-5);

• answer a proper inquiry from an appointing

officer about the judge’s knowledge of the char-

acter and fitness of a candidate for judge (U.S.

Advisory Opinion 59 (2009));

• respond to a candidate’s request for a letter of

recommendation if a merit selection commis-

sion has requested that all candidates submit a

recommendation from a judge (U.S. Advisory

Opinion 59 (2009)); and

• recommend persons to be considered for a judi-

cial appointment when requested to do so (U.S.

Advisory Opinion 59 (2009)).

See also Massachusetts Advisory Opinion 05-1 (judge

may use court stationery to write a letter of recom-

mendation to a judicial nominating commission on

behalf of a candidate for a judicial position); New

York Advisory Opinion 99-4 (at the request of the

state senate, judge may testify on behalf of the

appointment of an associate judge of the court of

appeals). Cf., Florida Advisory Opinion 89-15 (judge

may not appear before a judicial nominating com-

mission personally to introduce a candidate or speak

to members of the commission about his judgment

as to the best qualified person); Maryland Advisory

Opinion 1989-6 (judges of a circuit court, acting in

concert, may not submit to a judicial nominating

commission their evaluation of whether applicants

were “qualified,” “highly qualified,” or “unquali-

fied”); Virginia Advisory Opinion 03-2 (judge may

not respond to a request from a community com-

mittee appointed by a legislator to recommend can-

didates for judicial positions because such commit-

tees are not committees of the general assembly and

have no official standing).

In some jurisdictions, a judge can provide a rec-

ommendation only if requested to do so by the nom-

inating or appointing authority.

• A judge is discouraged from communicating

recommendations to the judicial selection com-

mission unless requested to do so or unless cir-

cumstances, in the exercise of the judge’s sound

discretion, make it especially compelling to do

so. Hawaii Advisory Opinion 01-2.

• A judge may submit a letter of recommenda-

tion for a candidate for appointment to a judi-

cial office only if formally requested to do so by

the appointing authority. Nevada Advisory

Opinion JE98-6.

• A judge with knowledge of an applicant’s pro-

fessional abilities may respond to requests for

recommendations for judicial appointments as

long as the requests come from or at the direc-

tion of agencies or groups officially tasked with

selecting candidates for appointment. Nevada

Advisory Opinion JE07-9.

• A judge may respond to inquiries about attor-

neys being considered for judicial posts from

those within the executive or legislative

branches with official responsibilities in the

matter. New Jersey Guidelines on Extrajudicial

Activities Addendum A.

• A judge may not, at the request of another

judge seeking reappointment, submit a letter in

support of reappointment to the mayor’s com-

mittee on the judiciary, but may respond to an

inquiry by the committee. New York Advisory

Opinion 96-117.

• Unless specifically requested to do so, a judge

may not write a reference letter concerning a

judicial candidate to the judicial nominating

committee or appointing authority. North

Dakota Advisory Opinion 92-1.

• A judge may provide information about a can-

didate for judicial appointment to a screening

committee if requested by the selection com-

mittee. South Carolina Advisory Opinion 14-

2009.

• A judge may not write a letter or place a tele-

phone call on behalf of a candidate for judicial

office to a screening committee appointed by a

legislator when the request is made by the can-

didate but may do so if the request is made by

or on behalf of the legislator. Virginia Advisory

Opinion 03-2.

See New York Advisory Opinion 00-124 (administra-

tive judge may respond to an oral request from an

appointing authority without requiring a formal

written request).

However, in other jurisdictions, a judge can

provide a recommendation even if the judge’s

opinion has not been solicited by the appointing

authority. In those states, a judge may:

• at the request of an attorney, write a letter to a

judicial panel recommending the attorney for

appointment to judicial office (Alabama Advi-

sory Opinion 98-689);

• write a letter to the judicial council concerning

the qualities and abilities of an applicant for a

judicial position even if the letter was not

solicited by the council (Alaska Advisory

Opinion 97-1);

• support, in an unsolicited letter, a candidate

seeking appointment to a judicial position

through the selection process (Florida Advisory

Opinion 89-15);

• initiate correspondence with a judicial nomi-

nating commission regarding the qualifications

of applicants (Florida Advisory Opinion 95-24);

• make a recommendation regarding a candidate

for appointment to a judgeship regardless

whether the judge’s views were requested

(Maryland Advisory Opinion 1980-1);

• write a letter of recommendation, solicited or

unsolicited, to the judicial nominating commis-

sion on behalf of an applicant for a judicial

position (Oklahoma Advisory Opinion 02-1);

• volunteer information or submit a name for a

candidacy (South Carolina Advisory Opinion 9-

1989); and

• offer unsolicited information to the judicial

nominating commission (Utah Informal Advi-

sory Opinion 99-8).

Some advisory committees distinguish between

recommendations made to nominating authorities

and those made to appointing authorities. The

Kansas judicial ethics committee, for example,

advised that a judge may write a letter addressed to

the nominating commission stating that she believes

a potential nominee is qualified to fill a vacancy, but

may not write a letter to the appointing authority

because such a recommendation would constitute an

endorsement of a candidate for public office prohib-

ited by the code. Kansas Advisory Opinion JE-40

(1992). Thus, a judge may not write a letter of rec-

ommendation to the governor endorsing one of

three candidates recommended for a judicial vacancy

(Kansas Advisory Opinion JE-27 (1989)), to the Pres-

ident or members of Congress supporting the

appointment of a potential nominee to the federal

judiciary (Kansas Advisory Opinion JE-45 (1993)), or

to a district judicial nominating commission that has

the final word in selecting a magistrate judge (Kansas

Advisory Opinion JE-128 (2005)). Similarly, an

Alaska advisory opinion states that sending an unso-

licited letter to the governor is improper because the

“Governor’s role in the selection process is political

and any written unsolicited comments regarding the

selection could be viewed as political.” Alaska Advi-

sory Opinion 97-1.

Other states, however, do not draw that distinc-

tion. See Florida Advisory Opinion 88-1 (judge may

communicate a statement in support of, or in oppo-

sition to, a person whose appointment is pending

before the governor); Maryland Advisory Opinion

1980-1 (judge may give views concerning applicants

for a judgeship to those who may be in a position to

recommend appointments to the governor).

Several opinions supply guidance regarding the

way in which a judge should communicate any rec-

ommendation or evaluation in the judicial selection

process to avoid abusing the judicial position. As in

all recommendations, the judge must have personal

knowledge of the person being recommended.

Further, the judge should avoid pleading for or

endorsing one candidate as opposed to all others.

Florida Advisory Opinion 95-24; Massachusetts Advi-

sory Opinion 94-1; Oklahoma Advisory Opinion 02-

1; U.S. Advisory Opinion 59 (2009). Committees

advise that a judge should not lend his name to a

publicity campaign for a candidate (Massachusetts

Advisory Opinion 94-1; Oklahoma Advisory Opinion

02-1; U.S. Advisory Opinion 59 (2009)), or actively

solicit support and engage in other activities on

behalf of an applicant, including asking community

leaders, lawyers, and others to write letters of

support (Florida Advisory Opinion 91-28). At least

two committees require that the judge’s letter of

support must remain private (Arizona Advisory

Opinion 87-1) or that the judge reasonably expect

that the endorsement will not be publicly

announced or publicly distributed (Oklahoma Advi-

sory Opinion 02-1).

Further, a judge’s recommendation should:

• address those qualities that relate to the criteria

used by the nominating commission in evaluat-

ing applicants (Alaska Advisory Opinion 97-1);

• be and appear to be directed only to factors rel-

evant to performance of the judicial office

(Massachusetts Advisory Opinion 94-1; Okla-

homa Advisory Opinion 02-1; U.S. Advisory

Opinion 59 (2009));

• avoid addressing the substantive merits of any

social or political issue surrounding the

nominee (Massachusetts Advisory Opinion 95-9);

• be “objective and informative” (Massachusetts

Advisory Opinion 94-1; Oklahoma Advisory

Opinion 02-1; U.S. Advisory Opinion 59

(2009));

• be factual, even-handed, succinct, and discreet

(Florida Advisory Opinion 89-15; Oklahoma

Advisory Opinion 02-1); and

• be an honest assessment of the candidate (Utah

Informal Advisory Opinion 94-5).

See also Connecticut Informal Advisory Opinion 2008-

10 (judge may not write a letter of recommendation

for a relative who is being considered for a judge-

ship); Pennsylvania Informal Advisory Opinion

6/6/02 (judge should state that a recommendation

for an appointment is not to be considered an

endorsement for subsequent election); Utah Infor-

mal Advisory Opinion 99-8 (providing information

to individual nominating commission members is

discouraged, but not unethical).

In some states, bar associations establish com-

mittees that evaluate candidates for elective judicial

office, and judges have been given permission to

provide information to these evaluation committees.

• A judge may answer written questions from a

bar association that is evaluating a candidate for

a judgeship and discuss personal observations of

the candidate, but should not discuss the candi-

date’s character. Pennsylvania Informal Advisory

Opinion 2/4b/05.

• A judge may respond to inquiries from an inde-

pendent judicial election qualifications commis-

sion or a bar association judicial candidate

evaluation committee about the qualifications

of candidates for elective judicial office. New

York Advisory Opinion 07-130.

• A judge may respond to a mass e-mail that a

bar association judicial screening committee

sends to its general membership asking about

the qualifications of an attorney who is a poten-

tial candidate for judicial office but should

neither urge approval nor disapproval of a can-

didate. New York Advisory Opinion 08-160.

LETTERS IN ADJUDICATIVE

PROCEEDINGS

In formal adjudicative proceedings, letters of rec-

ommendations from judges raise additional ques-

tions of propriety under the last sentence of Canon

2B of the code of judicial conduct: “A judge shall not

testify voluntarily as a character witness.” Advisory

opinions have interpreted that prohibition to apply,

not only to court proceedings, but to any investiga-

tory or adjudicative proceeding, regardless whether

administrative, civil, or criminal, where a person’s

legal rights, duties, privileges, or immunities are

determined. In 2007, the provision was clarified,

and Rule 3.3 of the model code now provides. “A

judge shall not testify as a character witness in a judi-

cial, administrative, or other adjudicatory proceed-

ing or otherwise vouch for the character of a person

in a legal proceeding, except when duly summoned.”

Sentencing

Judicial ethics advisory opinions addressing the

question have, without exception, declared that a

judge may not voluntarily write a letter to another

judge in connection with the sentencing of a defen-

dant in a criminal matter at the request of the defen-

dant or counsel on the defendant’s behalf even if the

sentencing judge is not in the same jurisdiction as

the judge writing the letter. Alabama Advisory

Opinion 00-744 (on behalf of acquaintance);

Arkansas Advisory Opinion 2005-1 (lifelong friend);

Florida Advisory Opinion 75-18 (letter to federal

judge); Illinois Advisory Opinion 95-12; Indiana

Advisory Opinion 5-91 (on behalf of lawyer in judge’s

county); Massachusetts Advisory Opinion 97-2; New

York Advisory Opinion 88-63 (court employee); New

York Advisory Opinion 89-73 (lawyer); New York

Advisory Opinion 91-46 (close friend); Pennsylvania

Informal Advisory Opinion 10/24/07 (neighbor’s

son); Pennsylvania Informal Advisory Opinion

9/13/05 (son’s former coach); Washington Advisory

Opinion 92-17 (adult child of family friend); West

Virginia Advisory Opinion (March 19, 2007) (family

member of good friend).

The prohibition also applies to a request for a

character reference to be used at a bond hearing

(South Carolina Advisory Opinion 21-2005) or in

support of a bail application for a former client

(New York Advisory Opinion 98-88). Further, a judge

may not submit a recommendation to a district

attorney in connection with a former law clerk’s plea

bargain (New York Advisory Opinion 89-4) or regard-

ing a close friend’s arrest for driving while intoxi-

cated (Pennsylvania Informal Advisory Opinion

3/12a/08).

A letter or other communication from a judge

on behalf of a person awaiting sentencing may be

viewed as an implied request by the judge for favor-

able treatment of the defendant. Alabama Advisory

Opinion 00-744. Ajudge is prohibited from writing

a character reference for use in sentencing even if the

letter is written on plain paper without using the

judicial title, is addressed “To Whom It May

Concern,” is based on the judge’s personal observa-

tions, and is given to the defendant’s attorney. Wash-

ington Advisory Opinion 92-17.

Several judges have been disciplined for writing

character reference letters, using official court sta-

tionery, on behalf of friends to sentencing judges.

Inquiry Concerning Fogan, 646 So. 2d 191 (Florida

1994), for example, the Florida Supreme Court

acknowledged that the judge’s letter, “standing alone,

constitutes no major act of judicial misconduct.

Judge Fogan said some nice things about a friend.

These things are, no doubt, also things that a sen-

tencing judge may like to know, especially when they

come from another judge.” The court concluded,

“therein lies the danger that the Canons seek to

curb.”

Judges must not act on their own initiative, especially

1. Inquiry Concerning Abel, 632 So. 2d 600 (Florida 1994) (public reprimand

for authoring and mailing a letter on official court stationery to a federal

judge as a character witness and reference on behalf of a defendant who had

pled guilty); Inquiry Concerning Stafford, 643 So. 2d 1067 (Florida 1994)

(public reprimand for writing a letter on official court stationery to a United

States probation officer as a character witness and reference on behalf of a

convicted defendant); Inquiry Concerning Fogan, 646 So. 2d 191 (Florida

1994) (public reprimand for writing a character reference letter on official

court stationery for a personal friend waiting to be sentenced in federal

court); Inquiry Concerning Ward, 654 So. 2d 549 (Florida 1995) (public rep-

rimand for a letter to a federal judge that extolled the virtues of a friend and

recommended a sentence of probation); In re Decuir, 654 So. 2d 687

(Louisiana 1995) (censure for, in addition to other misconduct, writing a

letter to a federal judge concerning the sentencing of friend); In re Marullo,

692 So. 2d 1019 (Louisiana 1997) (writing a letter on official stationery to a

sentencing judge was misconduct; no sanction warranted); In the Matter of

Martin, Determination (New York State Commission on Judicial Conduct

December 26, 2001) (www.scjc.state.ny.us) (admonition for twice sending ex

parte letters on judicial stationery that sought special consideration for defen-

dants who were awaiting sentencing in other courts); In re Bonner, Stipula-

tion, Agreement, and Order (Washington State Commission on Judicial

Conduct August 3, 2007) (www.cjc.state.wa.us/) (admonishment for writing

a letter on court stationery using the judicial title to a sentencing judge at the

request of the defendant).

in judicial proceedings, to lend the prestige of their

office for the private benefit of another. This practice

and its appearance undermines the very prestige and

respect that is being traded upon and, inevitably,

erodes public confidence in the judiciary.

The argument that a judge is not “testifying”

because a letter is not under oath was rejected in

Fogan. The court held that the prohibition on testi-

fying as a character witness was sufficiently broad to

encompass a written statement voluntarily submit-

ted with the knowledge and understanding that it

may be used directly or indirectly in some adjudica-

tory proceeding.

If a judge is properly summoned to testify,

however, a judge is obligated to comply. See, e.g.,

Inquiry Concerning Fogan, 646 So. 2d 191 (Florida

1994. Moreover, a judge may answer an official

request for information from the sentencing judge

(Illinois Advisory Opinion 95-12), the prosecutor

(Arkansas Advisory Opinion 2005-1), a parole and

probation officer on behalf of the sentencing judge

(Florida Advisory Opinion 75-22), or the probation

department (New York Advisory Opinion 91-46). A

defense attorney’s representation that a probation

officer has requested a letter, however, is not an offi-

cial, formal request to which a judge may respond.

Inquiry Concerning Ward, 654 So. 2d 549 (Florida

1995). Moreover, a letter extolling a defendant’s

virtues and recommending a particular sentence is

not “information” within the meaning of the excep-

tion, but a prohibited character reference. Inquiry

Concerning Ward, 654 So. 2d 549 (Florida 1995).

Both the general rule and the exception were

expressly incorporated in commentary to Canon 2B

of the 1990 model code: “A judge must not initiate

the communication of information to a sentencing

judge or a probation or corrections officer but may

provide to such persons information for the record

in response to a formal request.” That provision was

omitted from the 2007 model code. The California

code of judicial conduct creates an exception to the

prohibition on communications to a sentencing

judge or a probation or corrections officer that

allows a judge to “initiate communications with a

probation or corrections officer concerning a

member of the judge’s family, provided the judge is

not identified as a judge in the communication.”

Pardon and parole

Similarly, a judge is not permitted to make a rec-

ommendation regarding parole, pardon, or

clemency. See Alabama Advisory Opinion 78-44

(pardon or parole); Florida Advisory Opinion 77-17

(parole); Florida Advisory Opinion 82-15 (pardon);

Florida Advisory Opinion 97-7 (clemency for former

client); New York Advisory Opinion 97-92 (probation

for former client); New York Advisory Opinion 08-

143 (clemency for former litigant); Pennsylvania

Informal Advisory Opinion 3/22/04 (presidential

pardon); South Carolina Advisory Opinion 6-1994

(pardon for college classmate); Texas Advisory

Opinion 146 (1992) (parole); Texas Advisory

Opinion 207 (1997) (presidential pardon); U.S.

Advisory Opinion 65 (2009) (commutation of sen-

tence; pardon, parole).

Even the judge who sentenced an inmate may

not provide a recommendation about parole or

clemency although the judge may provide informa-

tion in response to an official request. See, e.g.,

Kansas Advisory Opinion JE-79 (1998); U.S. Advi-

sory Opinion 65 (2009). But see Alabama Advisory

Opinion 83-177 (judge who presided over trial may

respond, either positively or negatively, to proposed

parole for inmate where a statute requires that the

trial judge be given notice of the impending parole).

The Illinois advisory committee emphasized that a

judge may respond only to a direct and formal

request from the prisoner review board and that

neither the petitioner’s notification to the sentencing

judge of a clemency hearing nor a general invitation

for comments directed to interested parties and pub-

lished in a newspaper constitutes an official request.

Illinois Advisory Opinion 05-6. Further, the Alaska

advisory committee cautioned that a sentencing

judge who responds to an official request by the

pardon or parole board should refrain from giving

personal opinions and should narrowly address the

criteria used by the pardon or parole board. Alaska

Advisory Opinion 2003-1. The opinion did add that,

“because the only permissible communications are

‘official’ communications, official court stationery

should be used for the letters to the pardon or parole

board.”

A few advisory committees have allowed a judge

to write a letter of recommendation on behalf of a

fomer client to a pardon or parole board in response

to an official request. The New York judicial ethics

committee cautioned that the statement must be

based upon the judge’s knowledge of the inmate and

be designated “personal and unofficial.” New York

Advisory Opinion 97-92. The Tennessee judicial

ethics committee concluded that a judge may write

a letter to a parole or pardon board on behalf of a

former client because a judge “should not be

required to forego his or her First Amendment right

to free speech in all instances.” Tennessee Advisory

Opinion 94-5. The committee noted that the judge

believed his former client had a meritorious cause,

emphasizing that its opinion should not be broadly

interpreted, but was limited to the facts of the par-

ticular request.

In contrast, the Florida advisory committee

stated that a judge should not provide a recommen-

dation regarding a former client who was seeking

commutation of his sentence even in response to a

request from the parole and probation commission

although the judge could furnish information.

Florida Advisory Opinion 84-14. The committee was

concerned that a letter of recommendation would

inject the prestige of the judicial office into the pro-

ceeding and be misunderstood as an official testimo-

nial. The committee also noted a potential for a

conflict between the judge’s “duty as an attorney not

to reveal matters unfavorable” to a former client, and

her “duty as a judge to be completely candid and

truthful.”

There may also be an exception for judges who

are former prosecutors. The Washington advisory

committee stated that a judge may, based on infor-

mation the judge learned while acting as the prose-

cuting attorney, write a letter to the indeterminate

sentence review board that focuses on the nature of

the defendant’s criminal activity and its impact on

the victims. Washington Advisory Opinion 97-14.

The committee cautioned that the letter should not

be on official letterhead or refer to the judge’s

current position and should use the judge’s personal

address.

The Alabama advisory committee stated that a

judge may write a letter opposing the parole of a

prisoner from a sentence imposed as the result of a

conviction prosecuted by the judge as an assistant

district attorney where a statute envisions that offi-

cers of the court who participated in the trial can

provide input into the parole decision. Alabama

Advisory Opinion 06-866. However, the committee

cautioned that the judge should not provide the

information on the judge’s official letterhead, should

not identify herself as a judge, and should provide

only facts consistent with her capacity as the trial

attorney. Similarly, the Kentucky judicial ethics

committee advised that a judge who had formerly

served as commonwealth’s attorney could comply

with parole board rule requiring a prosecutor to

write a letter saying he has no objection to a felon

receiving early parole board review. Kentucky Advi-

sory Opinion JE-81 (1991).

An Alaska advisory opinion allows judges to

write a letter to the pardon or parole board “in their

personal capacity when a member of their immedi-

ate family is either the victim of the crime or the

convicted person coming before the board.” Alaska

Advisory Opinion 2003-1.

Disciplinary proceedings

In most states, the rule against voluntary charac-

ter testimony has been construed to prohibit a judge,

unless requested by bar officials, from writing a char-

acter letter to be used in attorney disciplinary pro-

ceedings. Thus, a judge may not:

• provide a letter on behalf of a disbarred attor-

ney seeking re-admission to the bar (Florida

Advisory Opinion 88-19; Missouri Advisory

Opinion 137 (1988); New York Advisory

Opinion 95-75);

• submit a character letter to the state supreme

court in bar proceedings to suspend an attorney

pending an appeal from a conviction for tax

evasion (Florida Advisory Opinion 75-6);

• send a letter or affidavit attesting to an attor-

ney’s character, competence, and service to the

bar and his clients for use at a hearing to deter-

mine the sanction in a discipline proceedings

(Nebraska Advisory Opinion 02-2);

• provide a character reference on behalf of a

lawyer seeking reconsideration of disbarment

(New York Advisory Opinion 89-73);

• provide a letter of support for a lawyer in a pro-

ceeding involving either discipline or reinstate-

ment (North Dakota Advisory Opinion 91-1);

• write a letter in a support of a lawyer who is

being investigated by a discipline committee

(Pennsylvania Informal Advisory Opinion

7/29/02); or

• sign an affidavit attesting to the competency of

an attorney to be used in a grievance proceed-

ing (Texas Advisory Opinion 277 (2001)).

See also Connecticut Informal Advisory Opinion 2008-

15 (judge may not provide a letter of reference for

use in an adversarial character and fitness proceed-

ing). The prohibition applies even if the attorney is

being investigated for conduct that occurred in a

trial over which the judge presided. See Florida Advi-

sory Opinion 92-1; New York Advisory Opinion 90-

156.

Similar advice has been given regarding judicial

discipline proceedings.

• An administrative judge should not write a

letter to the State Commission on Judicial

Conduct expressing her views of the profes-

sional performance of a judge who is the

subject of a matter before the Commission.

New York Advisory Opinion 99-101.

• A judge may not write a letter at the request of

another judge’s lawyer about his impressions of

the other judge to be submitted to the supreme

court with the response to judicial discipline

charges West Virginia Advisory Opinion (Sep-

tember 4, 1997).

See also New York Advisory Opinion 97-97 (in review

of determination of the State Commission on Judi-

cial Conduct, individual judges and a judges’ associ-

ation should not communicate with the Court of

Appeals that a judge, who is a member of the associ-

ation, should not be removed); In the Matter of

Waddick, 605 N.W.2d 861 (Wisconsin 2000) (it is,

“at least, inadvisable” for a judge to write a letter

speaking to the character of a respondent in judicial

disciplinary proceeding).

However, at least three states allow a judge to

write a reference letter in discipline proceedings even

absent an official request. Canon 2B(2)(b) of the

California code of judicial conduct permits judges,

even without a subpoena, to “provide the Commis-

sion on Judicial Performance with a written com-

munication containing . . . information related to

the character of a judge who has a matter pending

before the commission, provided that any such

factual or character information is based on personal

knowledge.”

The Washington advisory committee reasoned

that a character letter from a judge to the Washing-

ton Bar Association concerning the reinstatement of

a disbarred attorney was appropriate because the bar

association operates as an arm of the supreme court.

Washington Amended Advisory Opinion 88-5. See also

Washington Advisory Opinion 03-8 (judge may

provide factual testimony to bar association about

attorney’s professional skills in a letter that will be

part of the attorney’s disciplinary file, not as a miti-

gating factor but as an acknowledgment that the

lawyer is considered an excellent trial attorney).

The Alabama advisory committee has also issued

several opinions allowing a judge to submit a letter

of support or an assessment of an attorney’s per-

formance in discipline proceedings. Alabama Advi-

sory Opinion 78-48 (judge may respond to a general

notice of a petition for reinstatement to the state bar

that requests that members of the public furnish

information relevant to the qualifications of the peti-

tioner); Alabama Advisory Opinion 80-84 (judge

may submit a letter in support of an attorney’s appli-

cation for reinstatement at the attorney’s request);

Alabama Advisory Opinion 86-269 (judge may

submit a letter to the Board of Bar Commissioners

in support of an attorney against whom disciplinary

action has been taken or is being contemplated);

Alabama Advisory Opinion 89-390 (judge may

submit an assessment of an attorney’s performance at

a trial over which the judge presided to the state bar

grievance committee even if the case is pending on

appeal).

A judge is permitted to furnish the judge’s

opinion about a lawyer’s character in response to an

official request from the referee in attorney discipline

proceedings (Nebraska Advisory Opinion 02-2); from

the presiding hearing officer or disciplinary commit-

tee or its counsel (New York Advisory Opinion 89-

73); or from a discipline committee that is

investigating a lawyer (Pennsylvania Informal Advi-

sory Opinion 7/29/02). In addition, a judge may

authorize a lawyer to tell the disciplinary committee

that it may contact the judge (New York Advisory

Opinion 90-156). See also Commentary to Canon 2B,

California Code of Judicial Ethics (judge “shall

provide information to disciplinary bodies when

officially requested to do so”).

Judges are also prohibited from providing letters

of recommendation in disciplinary proceedings

involving court employees or individuals in other

professions.

• A judge may not write a letter attesting to the

character of a court employee and opposing ter-

mination of the employee for disciplinary

reasons for use in the appeal from a termination

decision. Massachusetts Advisory Opinions 04-4

and 04-5.

• A judge should not write a letter at the request

of a court employee facing disciplinary charges

attesting to the employee’s good character, work

ethic, and job performance. New York Advisory

Opinion 05-34.

• A judge may not write a letter of support on

behalf of the judge’s personal physician in a

hearing by state medical licensing authorities

considering whether the doctor may continue

to practice. Nevada Advisory Opinion

JE04-004.

Other proceedings

Other situations in which judges have been

warned against providing a letter of recommenda-

tion or similar reference, at least without an official

request, include family court, permit and licensure,

and immigration proceedings and in support of ter-

minated employees or insurance applications.

• A judge should not, without a subpoena or offi-

cial summons but under threat of subpoena,

sign an affidavit providing opinion evidence

concerning the parenting skills of the parties in

a pending matter, identifying himself as a

judge, and stating that his opinion was shared

by other judges in the county. In re Poyfair,

Stipulation, Agreement, and Order (Washing-

ton State Commission on Judicial Conduct

December 1, 1995) (www.cjc.state.wa.us).

• A judge may not write a recommendation for

use in a pending marital dissolution in which

custody of a child is at issue to the effect that

the judge’s stepson is a person of good charac-

ter. California Advisory Opinion 40 (1988).

• A judge may not provide pretrial character tes-

timony to a guardian ad litem in a post-dissolu-

tion of marriage action involving a close

personal friend even if it is pending outside the

judicial circuit of the inquiring judge. Florida

Advisory Opinion 2003-19.

• A judge may not voluntarily provide a reference

in support of an attorney’s application to adopt

a child that will become part of the file to be

considered by the court, which is located in the

same county where the judge presides. New

York Advisory Opinion 08-211.

• A family court judge should not provide a ref-

erence for the foster parent application of a

friend because the application will be heard in

family court. New York Advisory Opinion 05-60.

• A judge should not send a letter to an employer

recommending that a former employee be rein-

stated. Nebraska Advisory Opinion 07-4; Vir-

ginia Advisory Opinion 06-1.

• A judge should not write a letter to a modeling

agency asking them to reinstate an employee

who had been fired after an arrest. In the

Matter of Wright, Determination (New York

State Commission on Judicial Conduct 1988)

(www.scjc.state.ny.us).

• A judge should not write a memorandum to

the under-sheriff in connection with the sheriff

department’s decision whether to keep the

judge’s former bailiff in a field training

program. Public Admonishment of Coates (Cali-

fornia Commission on Judicial Performance

December 2, 2009) (http://cjp.ca.gov/).

• A judge should not initiate letters supporting

an individual’s efforts to have their civil rights

restored. Nebraska Advisory Opinion 07-4; Vir-

ginia Advisory Opinion 06-1.

• A judge should not initiate letters supporting

an individual’s efforts to renew permits such as

those allowing the possession of concealed

weapons. Nebraska Advisory Opinion 07-4; Vir-

ginia Advisory Opinion 06-1.

• A judge should not provide a letter of good

character on behalf of a friend applying for a

license to practice acupuncture with the state

department of education. New York Advisory

Opinion 93-12.

• A part-time judge may not write a letter of ref-

erence to the sheriff in the county in which the

judge presides in connection with the applica-

tion of a long-time client for a pistol permit

even if the letter would not mention the judi-

cial office and would be written as an attorney

on the attorney’s letterhead. New York Advisory

Opinion 95-33.

• A judge should not write a letter, on official

court stationery signed in the judge’s name, to

the New Jersey Racing Commission extolling a

client and good friend who had unsuccessfully

sought a license. In the Matter of Anastasi, 388

A.2d 620 (New Jersey 1978).

• A judge should not write a letter of reference

for his dog walker to be submitted to the

United States embassy in a foreign country to

aid the individual’s fiancé to obtain a visa. New

York Advisory Opinion 02-123.

• A judge should not write a letter to the state

department of labor supporting an application

for alien labor certification at the request of a

waiter at a neighborhood restaurant known to

the judge and the judge’s family. New York

Advisory Opinion 03-47.

• A judge should not voluntarily write a letter to

the Immigration and Naturalization Service

attesting to the good character of a member of

the judge’s church and requesting an expedited

exclusion hearing, but may respond to a request

from the INS for a letter of good character.

New York Advisory Opinion 03-51.

• A judge may not write a “to whom it may

concern” letter on behalf of an attorney who

has had her insurance policy canceled as a result

of a malpractice claim. Washington Advisory

Opinion 87-1.

• A judge should not write a letter of recommen-

dation on behalf of an attorney applying for a

life insurance policy who had been addicted to

a controlled substance, but has since been reha-

bilitated. New York Advisory Opinion 05-107.

SUMMARY

In general, a judge may furnish a letter of rec-

ommendation or act as a reference for a person

seeking employment, admission to an educational

institution or the bar, appointment to the bench, or

similar situations. In addition, most opinions on the

issue have advised that a judge may express a profes-

sional evaluation or opinion of a practicing attorney

for use by a legal rating periodical or in connection

with certification as a specialist, an eligibility list for

court appointments, or a government contract.

The primary condition placed on a judge writing

a letter of recommendation or acting as a reference is

that the judge must have substantial personal knowl-

edge of the person who is the subject of the refer-

ence. Further, several judicial ethics committees

require or suggest that, rather than agree to write a

letter of recommendation, a judge should permit

himself or herself to be listed as a reference and

respond to any inquiries received from an educa-

tional institution or potential employer. Another

limit on recommendations prohibits a judge from

writing a letter that will be used to promote an indi-

vidual’s business interests. A letter of recommenda-

tion may also be considered inappropriate if the

recipient is a party in litigation pending before the

judge or in connection with government employ-

ment that might suggest inappropriate political

activity.

The majority rule permits a judge to use judicial

stationery to write a letter of recommendation.

Several states have adopted a variation of this rule

that requires the judge to add the words “personal

and unofficial” when using official stationery. In

some states, whether a judge may use official sta-

tionery depends on whether the recommendation is

written on behalf of a personal friend or on behalf of

an individual the judge knows in an official capacity.

Finally, in some states, a judge may not use official

stationery for any letter of recommendation.

Some advisory opinions direct a judge not to

write a “to whom it may concern” letter, not to make

a recommendation on the telephone, not to promote

one candidate over all other applicants, and to

include disclaimers in their letters of recommenda-

tion.

A judge may provide a recommendation regard-

ing a person being considered for judicial office. In

some jurisdictions, a judge can provide a recommen-

dation only if requested to do so by the nominating

or appointing authority, but other states permit a

judge to write an unsolicited letter. Some advisory

committees allow recommendations only to nomi-

nating authorities and not to appointing authorities,

but other states do not draw that distinction. When

providing a letter in support of a candidate for

appointment, a judge should avoid pleading for or

endorsing one candidate as opposed to all others and

should address only factors relevant to performance

of the judicial office.

In contrast, judges may not provide a recom-

mendation in investigatory or adjudicative proceed-

ings, regardless whether administrative, civil, or

criminal, where a person’s legal rights, duties, privi-

leges, or immunities are ultimately determined.

Thus, a judge may not, without an official request,

write a letter to another judge in connection with

the sentencing of a defendant at the request of a

defendant or counsel on the defendant’s behalf.

Similarly, a judge may not make a recommendation

regarding parole, pardon, or clemency although

there may be limited exceptions for a judge who sen-

tenced an inmate or who, while an attorney,

defended or prosecuted the inmate.

In most states, the rule against voluntary charac-

ter testimony has been construed to prohibit a judge,

unless requested by bar officials, from writing a char-

acter letter to be used in disciplinary or reinstate-

ment proceedings for an attorney, judge, court

employee, or other professional.