October 23, 1990
Digest: A judge should not write a character reference at the request of an attorney being investigated.
Rules: 22 NYCRR 100.2(c); Code of Judicial Conduct, Canon 2B
The disciplinary committee of one of the Appellate Divisions is conducting an investigation of the conduct of an attorney with respect to an incident which occurred while the attorney was selecting a jury and which led to a dismissal of the attorney’s client’s action, later reinstated on conditions. The judge who dismissed the action and there after reinstated it has been asked by the attorney’s partner to write to the disciplinary committee on behalf of the attorney under investigation to advise the committee that the attorney has appeared before the judge frequently and, with this one exception, the attorney’s behavior has been in conformity with the highest professional standards, and that even in the instance in question the attorney was acting in good faith. The judge is willing to comply with the request, but is concerned with the ethical propriety of so doing, and has requested an opinion from this Committee.
Section 100.2(c) of the Rules of the Chief Administrator states that “[n]o judge shall testify voluntarily as a character witness”. Canon 2B of the Code of Judicial Conduct contains a nearly identical provision.
Previously, this Committee had issued opinions to the effect that section 100.2(c) prohibits a judge (1) from complying with a request from his former law clerk to write a character reference for submission to the district attorney in connection with the law clerk’s plea bargain in a criminal proceeding (Opinion 89-04) and (2) from writing letters giving character references on behalf of two lawyers, one awaiting sentence on a felony conviction, and the other seeking reconsideration of disbarment by the Appellate Division (Opinion 89-73) . In these opinions, we pointed out that to write such letters would be tantamount to voluntarily testifying as a character witness.
Similarly, to write a letter to the disciplinary committee here would be tantamount to voluntarily testifying as character witness and would violate section 100.2(c). Of course a request received from an appropriate agency, court or official for the judge’s opinion may be honored by the judge in the same manner as the judge would honor a subpoena. Thus, if the judge wishes, the judge may authorize the lawyer to tell the disciplinary committee that it may contact the judge concerning the matter.