April 18, 2002
Digest: A judge should not agree to discuss with the office of Borough President, a clemency petition of a prisoner over whose trial thejudge had presided.
Rules: 22 NYCRR 100.1; 100.2(C); Opinions 99-07 (Vol. XVII); 95-75 (Vol. XIII); 90-156 (Vol. VI); 89-73 (Vol. III); 89-04 (Vol. III); 88-63 (Vol. II)
A judge has been contacted by a representative from the office of a Borough President in New York City and asked to discuss a criminal case over which the judge had presided several years ago. The defendant’s father contacted the public official to ask for the official’s support of a clemency petition to be submitted by the defendant. The judge asks whether it is ethically permissible to speak with the representative from the Borough President’s office about the case.
A judge is prohibited from lending the prestige of judicial office to further the private interests of others. 22 NYCRR 100.2(C). This section also provides that a judge shall not testify voluntarily as a character witness. As a general matter, these rules prohibit judges from intervening, without official solicitation, in judicial or administrative proceedings involving professional or criminal misconduct (See, Opinion 99-07 (Vol. XVII) [judge should not, at the request of an old acquaintance’s corrections counselor, voluntarily write a letter in support of the individual’s release on parole]; 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]).
In the present inquiry, the request comes not from the public official who will decide the petition for clemency, but from a public official on behalf of a constituent. We believe that, under these circumstances, it is inadvisable for the judge to engage in such discussions. Public confidence in the integrity and independence of the judiciary is a paramount consideration, and in our opinion engaging in such discussions might lead to a public perception of impropriety, and should be avoided. 22 NYCRR 100.1. The judge, therefore, should not discuss the criminal case or the petition for clemency with the representative from the Borough President’s office.