January 24, 2002
Digest: A judge should not write a character reference for a friend who is a criminal defendant in a federal court located outside New York State.
Rules: 22 NYCRR 100.2(C); Opinions 88-63 (Vol. II); 89-04 (Vol. III); 89-73 (Vol. III); 90-156 (Vol. VI); 95-75 (Vol. XIII); 97-97 (Vol. XVI); 97-91 (Vol. XVI); 99-101 (Vol. XVIII).
An attorney representing a judge’s long-time friend in a criminal case has asked the judge to submit a letter attesting to the friend’s good character. The case is pending in a federal court located outside New York State. The judge asks whether it is ethically permissible to submit such a letter given that the case is pending in another state.
Section 100.2(C) of the Rules Governing Judicial Conduct provides that “[a] judge shall not lend the prestige of judicial office to advance the private interests of the judge or others . . . .” This section also provides that “[a] judge shall not testify voluntarily as a character witness.” In prior opinions, the Committee has advised that these rules prohibit judges from writing letters on behalf of individuals who are the subject of proceedings involving alleged professional or criminal misconduct unless a request for such a letter is made to the judge by the agency involved, e.g. a Parole Board. (See, Opinion 95-75 (Vol. XIII) [judge should not voluntarily write letter in support of disbarred attorney seeking readmission]; Opinion 90-156 (Vol. VI) [judge should not voluntarily write character reference in support of attorney under investigation by the disciplinary committee of one of the Appellate Divisions]; Opinion 89-73 (Vol. III) [judge should not voluntarily write character reference in support of lawyer awaiting sentencing or on behalf of disbarred lawyer seeking reconsideration]; Opinion 89-04 (Vol. III) [judge should not voluntarily write letter in support of former law clerk in connection with plea bargain in pending criminal prosecution]; Opinion 88-63 (Vol. II) [judge should not voluntarily write letter to probation department on behalf of a suspended court employee]; Opinion 99-101 (Vol. XVIII) [judge should not, at attorney’s request, write letter on another judge’s behalf to the Commission on Judicial Conduct] ).
In the present inquiry, the fact that the judge’s friend is involved in a federal criminal proceeding in a court located outside New York State does not change the outcome. Providing such a letter under the circumstances presented would still constitute a prohibited lending of the prestige of judicial office to advance the private interests of the friend. It is the Committee’s view that the judge should not write the letter.