April 21, 2005
Digest: (1) A judicial hearing officer is bound by the same standards regarding the writing of letters of reference as are judges. (2) Under the circumstances presented, a judicial hearing officer may: (a) write a reference letter for an attorney seeking admission to a law guardian panel without first being solicited by the appointing authority; (b) address the letter directly to the Supervising Judge of the panel; and (c) express an opinion as to whether the applicant will be a competent law guardian in light of the judicial hearing officer’s personal knowledge of the requirements of the position and the applicant’s qualifications.
Rule: 22 NYCRR 100.2(C); 100.6(A); Opinions 88-53 (Vol. II); 93-26 (Vol. XI); 94-44 (Vol. XII); 95-64 (Vol. XIII); 96-32 (Vol. XIV); 96-117 (Vol. XV); 98-123 (Vol. XVII); 99-101 (Vol. XVIII); 02-26.
A judicial hearing officer inquires as to the propriety of (1) writing a reference letter for two attorneys applying to be included on law guardian panels without first being asked by the appointing body to provide such a letter; (2) addressing the letter directly to the Supervising Judge of the panel; and (3) recommending that the attorneys be included on the panels or, alternatively, limiting the letters to the judicial hearing officer’s perception of their qualifications, in light of the requirements of the position.
At the outset, we note that section 100.6(A) of the Rules Governing Judicial Conduct provides that judicial hearing officers (and other quasi-judicial officials) are bound by the provisions of Part 100 “. . . in the performance of their judicial duties and otherwise shall so far as practical and appropriate use such rules as guides to their conduct.” 22 NYCRR 100.6(A). See, e.g. Opinion 95-64 (Vol. XIII); 94-44 (Vol. XII). Whether the Rule applies to letters of reference has not previously been before the Committee. We now hold that judicial hearing officers are bound by the rules and the Committee’s application of those rules with respect to the writing of letters of reference.
With respect to the first inquiry, section 100.2(C) of the Rules Governing Judicial Conduct provides that “[A] judge shall not lend the prestige of a judicial office to advance the private interests of the judge or others; . . . A judge shall not testify voluntarily as a character witness.” As previously held by the Committee, this Rule does not prohibit a judge from writing a letter of recommendation for an attorney seeking admission to an 18B panel. Opinion 96-32 (Vol. XIV). We perceive no distinction between that situation and the one before us and thus conclude that a judicial hearing officer is not prohibited from writing a reference letter for an attorney seeking admission to a law guardian panel.
While previous opinions have stated that a judge may not voluntarily submit a reference letter in advance of a request by the authority or body involved (Opinions 96-117 (Vol. XV) [recommendation of another judge for reappointment to the Mayor’s Committee on the Judiciary]; 98-123 (Vol. XVII) [recommendation for another judge for reappointment]; 99-101 (Vol. XVIII) [letter on another judge’s behalf with a pending matter before the Commission on Judicial Conduct]), the current reference letters are required for application to the law guardian panels, and, under such circumstances, the prohibition need not apply.
With respect to the second inquiry, of addressing a reference letter directly to the Supervising Judge of the panel, we note that in Opinion 88-53 (Vol. II), the Committee held that a letter directly addressed to the District Attorney was inappropriate because the Office of the District Attorney appears regularly before the judge, and thus a letter of reference may appear coercive to the District Attorney. Here, however, a letter directed to the Supervising Judge of the panel would not create any appearance of coercion in view of the fact that the law guardian does not appear as a representative of the appointing authority. That is, the law guardian appears as an independent attorney who has been appointed in a particular case by a judge presiding over the case, and there is no connection between his or her performance of the duties attendant upon such an appointment and the Supervising Judge. Thus, there is no reasonable basis upon which the Supervising Judge might appear to be coerced by a letter of reference. Accordingly, the judicial hearing officer may address the letter directly to the Supervising Judge of the law guardian panel to which the attorney seeks admission.
With respect to the third inquiry regarding whether or not the judicial hearing officer may recommend the attorney for inclusion on the guardian panel or limit his or her comments to the attorney’s qualifications, Opinion 02-26 provides that the judge may set forth his or her observations concerning the abilities of the candidate in relation to the position sought. Consequently, the judicial hearing officer can state a personal opinion that the attorney will be an able and competent law guardian in view of the judicial hearing officer’s personal knowledge of his or her professional qualifications, and of the requirements of the position.
Any letters of reference for an attorney’s admission to a law guardian panel may be written on the judicial letterhead of the judicial hearing officer, provided that the words “Personal and Unofficial” are noted clearly on the stationery. Opinion 93-26 (Vol. XI).
In conclusion, a judicial hearing officer may write a letter of reference for an attorney seeking admission to a law guardian panel without first being solicited by the panel. All letters must be marked “Personal and Unofficial” and may be specifically addressed to the Supervising Judge of the panel. The judicial hearing officer may state the attorney’s qualifications for being an able and competent law guardian in view of his or her personal knowledge of both the candidate and the requirements of the position.