Joint Opinion 15-139/15-140

September 10, 2015


Digest:         Absent an administrative order or rule change allowing judges who preside in treatment-oriented problem solving courts to serve as references for defendants/participants who recently appeared before them, a judge may not be a reference for someone who recently appeared before the judge as a defendant/participant in such a court.


Rules:          22 NYCRR 100.2; 100.2(A)-(C); Opinions 15-101; 14-151.


         The inquiring judges request reconsideration of Opinion 14-151, where the Committee advised that a “judge may not serve as a reference for an individual who recently appeared before the judge as a defendant/participant in a treatment-oriented problem-solving court.” The judge in Inquiry 15-139 has presided in treatment courts for nearly two decades. Over the years, he/she has seen many thousands of drug court graduates, including military veterans, whose lives have been transformed. Some have gone on to become lawyers, doctors, and even a judge. The judge asks the Committee to consider that drug treatment courts “serve not only as an alternative to incarceration but as an alternative to traditional case processing.” The drug court model includes “a collaborative approach among the judge, prosecutor, defense attorney, and treatment provider, direct judicial interaction with drug court participants, frequent judicial status hearings, frequent and random drug testing, interim sanctions and incentives, and multiple chances based upon the established science of addiction treatment and relapse.” Critically, these practices are designed “to promote participants’ successful and long-term reintegration into society. Once sobriety is achieved, no other factor is more important to participants’ sustained recovery than employment.” The judge further explains that drug treatment courts involve a “paradigm shift in the role of the judge.” This paradigm shift, based in part on scientific research that “participants are positively motivated when an authority figure takes an affirmative interest in their well-being,” involves “intensive judicial oversight” and personal interaction between the judge and the participant, including “both incentives and sanctions ..., depending on compliance progress.” The judge observes that the Committee has previously “approved writing a letter of reference, with some limitations, so long as the letter is based on reliable personal knowledge and does not recommend hiring the individual.” The judge argues that a judge who presides in a drug treatment court, “far more than any other drug court staff member, has interacted directly with the participant, has come to know the participant, and has a full understanding of the participant’s circumstances. The judge is in a unique position to comment on the participant’s progress in the drug court program and explain the legal and personal significance of drug court participation to a potential employer.” The judge believes it would be “ironic, indeed, if [he/she] could not support one of the ultimate goals of the drug court program – productive employment – after graduation.” The judge in Inquiry 15-140 does not explain why Opinion 14-151 should be reconsidered, and therefore the Committee assumes his/her reasoning would be similar.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]).

         As in Opinion 15-101, the Committee has “carefully reviewed the materials and arguments set forth in the present inquiry, and is sympathetic to the inquiring judge’s policy concerns.” However, such policy decisions are not within the Committee’s mandate, as they may well involve:


considering social science data and studies about factors that lead to successful rehabilitation; assessing the likelihood that a judge who writes a letter for a graduate may, in fact, compromise the judge’s impartiality if the individual comes before the judge in other proceedings; reviewing data about recidivism rates; considering the viability of alternative methods for the treatment court team or court administration to support a graduate’s efforts to find employment; considering whether and how to choose which graduates will receive such support, if fewer than all; whether providing such references should be part of a judge’s judicial duties; and, of course, weighing all of the above in light of the rehabilitative policy of the treatment-oriented courts.

(id. n 1). Thus, absent an administrative order or rule change expressly authorizing judges who preside in drug treatment courts to write letters on behalf of defendants who have recently appeared before them, the Committee must again adhere to its conclusion in Opinion 14-151 (citations omitted):


writing such a letter would create an appearance of impropriety because the judge’s relevant knowledge of the individual’s suitability [for the position] is inextricably intertwined with the individual’s recent involvement as a defendant and problem-solving court participant before the judge. While the procedure followed in treatment-oriented problem solving courts is likely to promote closer, more personal relationships between the presiding judges and the defendants, the judges still must uphold the independence of the judiciary and must not lend the prestige of judicial office to advance the private interests of others.

The Committee simply cannot say, as a matter of judicial ethics, that judges who preside in drug treatment courts must be held to a different standard of impartiality and independence than other judges with respect to the litigants who appear before them. “That policy decision, if it is to be made, must be made at the highest levels of court administration” (Opinion 15-101).