September 14, 1999
An Administrative Judge should not write a letter to the State Commission
on Judicial Conduct expressing views as to the professional performance
of a judge who is the subject of a pending matter before the Commission,
but may write such a letter in response to an official request by the Commission.
22 NYCRR 100.2(C);
Opinions 97-97 (Vol. XVI);
97-91 (Vol. XVI); 95-75 (Vol. XIII);
90-156 (Vol. VI); 89-73 (Vol. III);
89-04 (Vol. III); 88-63 (Vol. II).
The inquirer is an Administrative Judge "responsible for supervising numerous other judges." One of the judges of the court overseen by the inquirer has a matter pending before the State Commission on Judicial Conduct involving an incident that occurred in the court. The judge's lawyer has asked the inquiring judge to write a letter to the Commission on the judge's behalf. The inquirer has no personal knowledge of the actual incident but "would be willing to write a letter regarding the Judge's performance within the Court, along with an evaluation of the Judge's professional skills and abilities."
In Opinion 97-97 (Vol. XVI), the Committee had before it an inquiry from
an association of judges concerning a determination of the State Commission
that a judge, who was a member of the association, should be removed from
judicial office. That matter was before the Court of Appeals on review,
and the association inquired whether it could communicate with the Court
in order to express its views on the sanction of removal. The Committee
responded as follows:
Section 100.2(C) of the Rules Governing Judicial Conduct states 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".
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 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]).
Although in the present inquiry the Administrative Judge would not be directly expressing an opinion either on the incident in question or on possible future sanction, the basic principle of non-intervention "without official solicitation, in judicial or administrative proceedings involving professional or criminal conduct" (Opinion 97-97 [Vol. XVI]), is wholly applicable. In our opinion, the writing of the letter at the lawyer's request would be violative of section 100.2(C) of the Rules. Accordingly, the inquirer should not write the letter being requested by the judge's attorney. However, it is certainly not unethical or otherwise inappropriate for the Administrative Judge to authorize the lawyer to tell the Commission on Judicial Conduct that it may contact the judge directly concerning the matter. Should that occur, the inquirer could write a letter to the Commission along the lines stated in the inquiry. See, e.g. Opinion 97-92 (Vol. XVI) [judge may respond to official inquiry from State Division of Parole concerning prisoner]; Opinion 88-63 (Vol. II) [judge may not send letter to Probation Department but may respond to an inquiry from it concerning a defendant.]The Committee sees no basis for drawing a distinction in a case where the subject of the charges of misconduct is a judge. Further, the Committee is of the view that the prohibition noted above applies to judges individually as well as to an association of judges acting collectively and that the prohibition applies to oral statements made in a public context, as well as written ones.