Opinion 15-173

October 22, 2015

Digest:         A judge with relevant personal knowledge may write a letter supporting a court officer’s request to be assigned to the judge’s courthouse.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 14-33; 11-16; 10-07; 05-34; 02-26; 02-07; 90-46; 88-63.

Opinion:

         A part-time judge asks whether he/she may write a letter supporting a court officer’s request to be assigned to the judge’s courthouse. The judge knows the court officer’s performance from personal experience and observations as an attorney in private practice and as a Judge for a combined total of eleven years.

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

         As the Committee explained in Opinion 14-33 (citations omitted):

In applying Section 100.2(C), the Committee has distinguished between “a strictly private situation, e.g. a letter of reference on behalf of a job applicant known to the judge,” and a letter supporting an individual’s application to a government agency “to make a decision with substantial public implications.” In the latter situation, much greater caution is needed to avoid creating an appearance that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency.

         The Committee has advised that a judge with relevant personal knowledge may, at the request of a job applicant, write a letter of reference for the applicant. Thus, for example, a Surrogate’s Court judge may write a letter to a City Court judge in support of a court employee’s application “for a position as a clerk in the other judge’s court” (Opinion 90-46).

         By contrast, a judge may not write a letter on behalf of a court employee who is awaiting sentencing in a criminal case (see Opinion 88-63) or is the subject of a disciplinary proceeding (see Opinions 11-16; 05-34), absent a request from the appropriate agency or official.¹ Likewise, the Committee has advised “a judge should not write a letter of reference to a screening committee or similar body on behalf of a judge seeking appointment or reappointment to judicial office unless a request for such a reference is made by the body itself” (Opinion 02-07 [citations omitted]; accord Opinion 02-26 [judge may not write a letter “encouraging an appointing authority to appoint an attorney to a quasi-judicial vacancy,” but may provide his/her observations about the attorney’s abilities “[s]hould the appointing authority contact the judge”]).

          Nonetheless, a judge with relevant personal knowledge may write a letter to the Chief Administrative Judge on behalf of another judge who is seeking a “designation by the Chief Administrative Judge” to a higher judicial position (Opinion 02-07). The designation “is wholly a discretionary act on the part of the Chief Administrative Judge and may be revoked at any time,” subject only to “the approval of the presiding justice of the appropriate Appellate Division” (id.). Under these “very special circumstances,” a letter supporting another judge’s application “would not be perceived as improperly intervening in an appointment process,” where that process

is purely an administrative decision made by the Chief Administrative Judge in the exercise of his or her constitutional authority; and no procedure is prescribed for the exercise of that authority in this instance except that approval is to be secured from the presiding justice of the Appellate Division.... What we have is an administrative action that is confined entirely to the court system itself, and which carries with it none of the public aspects that might otherwise pertain to appointments to judicial office (id.).

         The Committee believes that assignment of a court officer to a specific courthouse within the Unified Court System is likewise “an administrative action that is confined entirely to the court system itself, and ... carries with it none of the public aspects that might otherwise pertain to” other matters involving court employees (id.), such as criminal cases (see e.g. Opinion 88-63) or disciplinary proceedings (see Opinions 11-16; 05-34).

         Thus, this judge may write a letter supporting a court officer’s request to be assigned to the judge’s courthouse. If the judge uses judicial letterhead, it must be marked “Personal and Unofficial.” The judge should also abide by generally applicable cautions and limitations as set forth in Opinion 10-07 (citations omitted):

a judge who provides a reference for a job, law school, or college applicant, or an applicant for an appointive position, 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.

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         ¹ Although the judge may not write such letters at the request of the individual or his/her counsel, the individual may list the judge’s name as a reference.