Opinion 16-38

March 16, 2016

Digest:         A judge presiding in a large urban criminal court may write a reference for a police officer seeking to be promoted based on personal knowledge of the officer, which predates the judge’s assumption of judicial office, where he/she can easily recuse him/herself when this officer appears in his/her court.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 10-164; 10-07; 01-37; 93-26.

Opinion:

         A judge, presiding in a large urban criminal court with over 20 judges, asks if he/she may write a reference to support a police officer’s application for promotion. The judge knew the officer for over a decade as an attorney before he/she assumed the bench, and “can attest to [the officer’s] professional skills and abilities.” The judge says he/she can easily recuse him/herself from any matters when the officer appears.¹

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

         In general, a judge may write employment reference letters based on the judge’s personal knowledge of the applicant’s professional performance, even when the individual is an attorney who regularly appears before the judge (see Opinion 10-07). Indeed, the Committee has advised that a judge may nominate a probation department employee for an internal award to acknowledge “employees who significantly assist the court in the administration of justice” (Opinion 10-164) or write a reference letter for an attorney seeking a promotion to a higher level academic position, as long as there is no potential for conflict or appearance of impropriety (see Opinion 93-26). When writing such reference letters, the judge:

Should not recommend that the recipient hire, accept or appoint the applicant. Rather, the judge should limit his/her comments to his/her personal knowledge of the applicant’s professional performance; to the judge’s observations of the applicant’s qualities and abilities that are relevant to the position the applicant seeks; or to the judge's opinion of a person's character based on the judge’s observations; or to the applicant’s work history if the judge has worked with the person or otherwise has reliable personal knowledge of the person’s expertise (Opinion 10-07 [citations omitted]).

         However, the Committee also advised a judge may not write “letters of recommendation on behalf of police officers seeking promotions where it appears likely that the officers will be witnesses, or otherwise involved, in cases before the judge” (Opinion 01-37). Assuming “the police officers referred to in the inquiry (or their associates or superiors), are likely to appear in the judge’s court or will otherwise be involved in criminal cases that are before the judge,” the Committee was concerned that such letters “might, under the circumstances, seem coercive” (id.) and that a judge’s personal recommendation could “give rise to a perception of judicial partiality” given “the centrality of police officer testimony in most criminal prosecutions” (id.).

         In the present inquiry, however, the judge’s personal knowledge of the police officer predates the judge’s assumption of judicial office. Moreover, the relatively large number of judges and police officers in the judge’s jurisdiction support the judge’s assertion that he/she can easily recuse him/herself from any matters involving this one specific police officer whom the judge knows personally.

         In large urban criminal courts where many officers from multiple precincts are witnesses, the Committee does not see the proposed letter of reference as “coercive” or “giv[ing] rise to a perception of judicial partiality” (cf. Opinion 01-37). Nor does the Committee believe a judge’s impartiality can reasonably be questioned in all criminal matters involving the police, merely because the judge wrote a reference letter for one police officer.

         Accordingly, the Committee concludes the judge may write a reference letter for a police officer seeking a promotion based on the judge’s personal knowledge of the officer, which predates the judge assuming judicial office, where the judge can easily recuse him/herself from matters where the officer appears.

         To the extent Opinion 01-37 prohibits a judge from writing a reference letter for a police officer who will not appear before the judge, merely because that police officer’s “associates or superiors” are likely to appear before the judge, it is hereby modified to be consistent with this opinion.

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         ¹ This police officer is one of thousands that serve the judge’s jurisdiction.