June 12, 2003
Digest: A judge should not write a letter to the New York State Department of Labor supporting an application for “Alien Labor Certification” at the request of a person known to the judge and the judge’s family as a waiter who works for a neighborhood restaurant.
Rule: 22 NYCRR 100.2(c); Opinions 88-63 (Vol. II); 89-04 (Vol. III); 89-73 (Vol. III); 95-75 (Vol. XIII); 90-156 (Vol. VI);98-88 (Vol. XVII); 02-123.
A judge asks if it is ethically permissible to voluntarily write a letter to the New York State Department of Labor supporting an application for “Alien Labor Certification” at the request of a man known to the judge and the judge’s family as a waiter who works for a neighborhood restaurant.
Section 100.2(C) of the Rules Governing Judicial Conduct prohibits a judge from lending the prestige of judicial office to advance the private interests of others, or testifying voluntarily as a character witness. 22 NYCRR 100.2(C). In past opinions, this Committee has concluded that this rule prohibits a judge from providing a voluntary letter of reference or of good character in a variety of circumstances: Opinion 88-63 (Vol. II) (letter to probation department on behalf of court employee recently convicted of a crime); Opinion 89-04 (Vol. III) (character reference for former law clerk in connection with the law clerk’s plea bargain arrangement); Opinions 89-73 (Vol. III) and 95-75 (Vol. XIII) (character reference for lawyer awaiting sentencing for a felony conviction and on behalf of disbarred attorney seeking re-consideration by the Appellate Division); Opinion 90-156 (Vol. VI) (letter on behalf of an attorney under investigation by the disciplinary committee); Opinion 98-88 (Vol. XVII) (letter in support of former client’s bail application); Opinion 02-123 (letter of good character on behalf of judge’s dog walker that would be submitted to the United States Embassy in a foreign country to support a visa application by the dog walker’s fiancee).
Each of the above circumstances involves a law enforcement, quasi-law enforcement or professional disciplinary situation requiring a governmental body to make a decision with substantial public implications and is thus distinguishable from a strictly private situation, e.g. a letter of reference on behalf of a job applicant known to the judge. Here, the inquiry falls into the former category and thus, in our opinion the judge is prohibited from voluntarily providing a letter at the request of the waiter from a restaurant in the judge’s neighborhood. The judge may provide such a letter, however, upon the request of the New York State Department of Labor. See Opinion 90-156 (Vol. VI).