Opinion 22-80
May 5, 2022
Digest: A judge in a problem-solving court may not write a letter at the request of a criminal defendant or their counsel attesting to the importance of the defendant’s court-related employment. Where the court coordinator is employed by a not-for-profit entity, the judge should not take any position on whether the court coordinator may write such a letter.
Rules: 22 NYCRR 50; 100.2; 100.2(A); 100.2(C); Opinions 14-33; 11-16; 05-34; 89-73; 88-63; 89-04.
Opinion:
The inquiring judge presides in a problem-solving court which contracted with a not-for-profit agency to hire a court coordinator and certain other nonjudicial personnel to “work directly with and for” the court. One member of the court coordinator’s staff has been charged with a felony-level offense, and the staff member’s defense attorney has asked the judge to write a letter “explaining the importance of the staff member’s job” for use in the criminal case. In the alternative, the defense attorney requests that the court coordinator write the letter. The judge asks if they may write such a letter or permit the court coordinator to do so.
A judge must always avoid even the appearance of impropriety and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2; 100.2[A]). A judge must not lend the prestige of judicial office to advance the private interests of others and must not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
In applying Section 100.2(C), we have 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” (Opinion 14-33 [citations omitted]). 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 (see id.).
We have advised that judges should not voluntarily write letters at the request of current and former employees who are facing disciplinary or criminal charges, attesting to their “good character, work ethic and job performance” (Opinions 05-34; 11-16; 89-04; 88-63). The same is true if defense attorneys make the request on behalf of their client (see e.g. Opinion 89-73). Conversely, a judge may respond to direct government inquiries regarding a current or former court employee. Indeed, we have advised that “a judge may honor a request received from an appropriate agency, court or official for the judge’s views in the same manner as the judge would honor a subpoena” (Opinion 14-33 [citations omitted]). We reasoned that responding to a government agency’s request for information “does not raise the same concerns 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” (id.).
Here, the request comes from the staff member’s defense attorney, rather than the tribunal itself, and any letter submitted by the judge would be used in the litigation, whether in plea negotiations with the District Attorney or in connection with sentencing by the court, or the like. Accordingly, the inquiring judge must not write the requested letter.
In the alternative, the judge asks if they may permit the court coordinator to write such a letter. We understand the court coordinator is not the judge’s personal appointee, nor even an employee of the court system, but is instead employed by a not-for-profit agency to work directly with and for the court. On the facts presented, we conclude the judge should not take any position on whether the court coordinator may attest to the importance of their staff member’s court employment.1
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1 To the extent that any questions may arise under the Rules Governing Conduct of Nonjudicial Court Employees (see 22 NYCRR Part 50), we note the Nonjudicial Ethics Helpline (1-888-283-8442) provides guidance on such issues to nonjudicial court employees.