September 10, 1991

The Ethics Advisory Committee has been asked for its opinion as to whether the Code of Judicial Conduct allows a trial judge to write letters of reference upon request, and if so, what restrictions exist on the content of such letters. This opinion is limited to the two factual situations provided by the judge.

First, an individual who has done construction work for the judge personally has requested that the judge write a letter of reference to help him secure financial support for a new business venture. The proposed business is a treatment facility which would receive referrals from the courts. The judge is not certain to whom the letter will be offered.

Second, an employee of a county operated pre-trial release and supervision program who has applied for a position with the federal probation system has asked the judge for a letter of recommendation. The employee has appeared in the judge's court in her official capacity, and the judge has valued the employee's judgment and relied upon her recommendations in making release and bail decisions. The federal position would be similar to the employee's current position.

The judge has correctly indicated that the issues raised are controlled by Canon 2(B), which states in part:

A judge should not lend the prestige of the judicial office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge should not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life. (Emphasis added).

Our Code differs from the ABA Code of Judicial Conduct by the inclusion of the underlined language. Although honest references are clearly authorized, they may not be given if they lend the prestige of the judicial office to advance the private interests of others, or if they convey or permit others to convey the impression that the subject of the reference is in a special position of influence with the judge.

At least two other ethics committees have dealt with letters of reference provided for the purpose of helping another to obtain financing. New York's Advisory Committee on Judicial Ethics, in its Opinion 89-15, determined that a judge may not furnish such a letter to a bank for a friend because the judge would be lending the prestige of the judicial office to advance the friend's private interests. The federal Advisory Committee on Codes of Conduct has also stated that such letters are prohibited. In its Advisory Opinion No. 73, issued August 26, 1983, the Committee stated:

With respect to non-political recommendations, the requirement of Canon 2B that a judge "should not lend the prestige of his office to advance the private interests of others" comes into play. This means, at the very least, that a judge should not make a recommendation in support of a commercial venture, or when a recommendation is, or could reasonably appear to be, requested primarily because of the prestige of his office. And this is very likely the case whenever the relationship between the judge and the person seeking the recommendation is such that the judge is in no better position than many others would be to evaluate that person.

This committee agrees that a judge should not provide a letter of reference in order to help a person obtain financing for a commercial venture when, as here, the judge is in no better position than any other person with whom the requesting party has dealt. The committee's opinion is even stronger in the situation related by the judge, because a reference could be perceived as an indication that the judge would make referrals to the requesting party's facility rather than other available facilities.

However, a letter of recommendation for employment, given on behalf of an individual whom the judge knows in a business or professional capacity is allowed under our Code. Even Codes of Judicial Conduct which do not contain a provision expressly allowing such references have not prohibited them. The federal Advisory Committee, again in Advisory Opinion No. 73. stated:

. . . judges are members of society, and of the community at large, and . . . not every action of a judge is intended, or could reasonably be perceived, as an assertion of the prestige of his judicial office. When a judge is personally aware of facts or circumstances which would facilitate an accurate assessment of the individual under consideration, a judge may properly communicate that knowledge, and his opinions based thereon, to those responsible for making decisions concerning the applicant, the judge's awareness may be based. for example, on a longstanding and intimate knowledge of the person or special knowledge derived from some relationship, such as that with a law clerk.

In any case, the judge should carefully consider whether his recommendation or endorsement might reasonably be perceived as exerting pressure by reason of his judicial office, and should avoid any action which could be so understood.

The committee believes that the judge may provide a letter of recommendation on behalf of the federal probation applicant arising from the applicant's past involvement with the judge and the judicial system. The letter may include facts known to the judge, as well as the judge's opinions based on those facts.