September 11, 1997
A full-time judge who formerly represented a criminal defendant who is
presently incarcerated and who is to appear before the New York State Board
of Parole, may respond to an official request of the Division of Parole
for a statement and/or recommendation concerning the former client, provided
that the response is based upon the judge's knowledge of the defendant
and is designated "personal and unofficial."
22 NYCRR 100.2(C);
Opinions 90-156 (Vol. VI),
89-73 (Vol. III), 89-04 (Vol. III),
88-63 (Vol. II).
A full-time judge has received a letter from the New York State Division of Parole concerning a former client of the judge, who is presently incarcerated. The letter states that the former client is scheduled to appear before the Board of Parole in January 1998. As stated in the letter: "The Board of Parole is requesting a statement and/or recommendation from you regarding this inmate." The judge seeks advice as to whether he/she "may respond to the letter and to what extent."
This Committee has repeatedly advised that a judge may not, at the request
of a person involved in a criminal or professional misconduct proceeding,
voluntarily submit a letter or affidavit recommending a particular course
of action by the agency involved or attesting to the good character of
the individual. Such action could readily be perceived as using the prestige
of judicial office to advance the private interests of another, and is
akin to voluntarily testifying as a character witness, both of which are
proscribed by section 100.2(C) of the Rules Governing Judicial Conduct.
e.g. Opinion 90-156 (Vol. VI), 89-73 (Vol. III), 89-04 (Vol. III),
88-63 (Vol. 11)). However, such cautions have also been accompanied by
the recognition that a response by a judge to an official inquiry by an
agency may be likened to having received a lawful subpoena to testify as
a character witness and therefore may be responded to by the judge. In
Opinion 88-63 (Vol. II), a suspended court employee who had been recently
convicted of a crime had asked the judge to send a letter to the Probation
Department. In response to an inquiry by the judge, the Committee stated:
Under the same rationale that distinguishes voluntary character testimony by a judge from a response by the judge to a lawful subpoena or to a lawful request for information from a public agency, the Committee is of the opinion that you should not voluntarily at the defendant's request send a letter to the Probation Department but that you may respond to an inquiry made to you from the Probation Department concerning this defendant.
Thus, the judge in this instance, having received an official inquiry from the Division of Parole, may respond. The response should be based on the judge's knowledge of the inmate, and, since the letter was addressed to the judge in his/her former capacity as the attorney for the inmate, and not as a judge any response must clearly specify that it is "personal and unofficial."