April 19, 2001
Please Note: This opinion has been modified in part (see Opinion 16-38 ["To the extent Opinion 01-37 prohibits a judge from writing a reference letter for a police officer who will not appear before the judge, merely because that police officer's 'associates or superiors' are likely to appear before the judge, it is hereby modified to be consistent with this opinion."]).
Digest: A judge should not write letters of recommendation on behalf of police officers seeking promotions where it appears likely that the officers will be witnesses, or otherwise involved, in cases before the judge.
Rule: 22 NYCRR 100.2(C); 100.4(A)(1); Opinions 88-53 (Vol. II); 90-40 (Vol. V); 94-36 (Vol. XII).
A city court judge inquires whether it is permissible to write letters on behalf of city police officers in support of their applications for promotion.
The governing provision with respect to this inquiry is section 100.2(C) of the Rules Governing Judicial Conduct which states, "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . ." 22 NYCRR 100.2(C). While this rule does not constitute a general bar to all letters of recommendation (see, Opinions 94-36 (Vol. VII) [judge may recommend former assistant district attorney in search of private employment]; 90-46 (Vol. V) [judge may recommend court employee seeking employment in another court]), caution is required where such an unsolicited letter might, under the circumstances, seem coercive (See e.g., Opinion 88-53 (Vol. II) [criminal court judge should not write letter of recommendation to district attorney whose assistants appear in judge's court, but the judge may be listed as reference by person seeking employment with the district attorney]). Further, given the inherent question of credibility that applies to any witness, and the centrality of police officer testimony in most criminal prosecutions, the fact of a personal recommendation may give rise to a perception of judicial partiality. 22 NYCRR 100.4(A)(1).
The Committee assumes that the police officers referred to in the inquiry (or their associates or superiors), are likely to appear in the judge's court or will otherwise be involved in criminal cases that are before the judge. Under these circumstances, the Committee believes that the judge should not write letters of recommendation intended to advance the careers of these officers.