October 23, 2014
Digest: A judge may not serve as a reference for an individual who has recently appeared before the judge as a defendant/participant in a treatment-oriented problem-solving court.
Rules: 22 NYCRR 100.1; 100.2; 100.2(A); 100.2(B); 100.2(C); 100.3(A); 100.4(A)(1); 100.4(A)(3); Opinions 14-181; 10-34; 10-07; 09-11; 08-191; 06-156; 95-153 (Vol. XIII); 91-132 (Vol. VIII); 88-10 (Vol. I).
A judge who presides in a treatment-oriented problem-solving court1 asks whether he/she may write a letter of recommendation for a former criminal defendant and successful problem-solving court participant who would like to volunteer for a particular program. The judge knows the individual from appearances in court “one to two times a month” and from speaking with the individual “several times since [his/her] graduation” from the program. The judge emphasizes that he/she “spoke to [the individual] on numerous occasions at length and witnessed [his/her] accomplishment in putting [his/her] life back together during [his/her] time in the program.” At this point, the individual “is completely finished with Court appearances and is no longer subject to any Court or Probation supervision.”
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not allow family, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]). A judge’s judicial duties take precedence over all of the judge’s other activities (see 22 NYCRR 100.3[A]), and therefore a judge must not engage in extra-judicial activities that “cast reasonable doubt on the judge’s capacity to act impartially as a judge” (22 NYCRR 100.4[A]) or “interfere with the proper performance of judicial duties” (22 NYCRR 100.4[A]).
The Committee has previously advised that a judge may not serve as a mentor to a teenager who recently appeared before the judge as the respondent in a Persons in Need of Supervision truancy proceeding (see Opinion 14-181) and may not rent an apartment to a litigant who is currently before the judge, even where the judge’s intention is to rent the apartment “at less than fair market value” to help “protect the litigant from the onerous terms of the proposed partial liquidation of a structured settlement annuity” (Opinion 10-34 [noting the litigant had come to court seeking approval of the proposed liquidation]). A judge also may not accept an invitation from the child of two murder victims to attend “a luncheon to thank friends and neighbors for their love and support,” where the judge presided over the trial over a year ago (Opinion 91-132 [Vol. VIII]) or agree to meet with a crime victim after a concluded criminal trial “in order for the victim to speak to the judge about the history of abuse he/she experienced before the trial and to thank the judge for considering the victim’s views at the time of sentencing” (Opinion 09-11). In each of these instances, the Committee concluded that the judge’s proposed personal interaction with a litigant concerning the subject matter of the case that was (or had been) before the judge would, at the very least, create an appearance of impropriety (see Opinions 14-181; 10-34; 09-11; 91-132 [Vol. VIII]).
The Committee believes that a judge with relevant personal knowledge of an individual would ordinarily be permitted to write a letter in support of that individual’s application to serve as a volunteer, subject to the same general considerations as a letter in support of an application for paid employment (see e.g. Opinions 10-07; 06-156; 95-153 [Vol. XIII]; 88-10 [Vol. I]). Here, however, writing such a letter would create an appearance of impropriety because the judge’s relevant knowledge of the individual’s suitability as a volunteer is inextricably intertwined with the individual’s recent involvement as a defendant and problem-solving court participant before the judge (see 22 NYCRR 100.2; Opinions 14-181; 10-34; 09-11; 91-132 [Vol. VIII]). While the procedure followed in treatment-oriented problem solving courts is likely to promote closer, more personal relationships between the presiding judges and the defendants, the judges still must uphold the independence of the judiciary and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.1; 100.2[C]). Accordingly, the judge may not write the requested letter.
1In courts of this type, defendants are typically given the option of entering voluntarily into court-supervised treatment in return for a reduced sentence, subject to certain rules and conditions set forth in a contract entered into by the defendant, the defense attorney, the prosecutor, and the court (see e.g. Opinion 08-191).