DECEMBER 2, 1994

The Ethics Advisory Committee has been asked for its opinion on the "manner and extent to which judges may respond to inquiries from judicial nominating commissions" and "the propriety of sitting judges recruiting applicants for judicial vacancies." Because specific factual situations have not been provided, this opinion provides only general instruction.

Both issues are controlled by Canon 2B, which states: 

A judge shall not allow family, social, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life.

Although not formally adopted in Utah, the Commentary to Canon 2B of the 1990 ABA Revised Model Code includes the following cogent statement:

 Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration,   and by responding to official inquiries concerning a person being considered for a judgeship.

When asked whether a judge could respond to a request from the governor to write a recommendation concerning the judicial appointment of an attorney with whom the judge was familiar, the California Judges Association's Committee on Judicial Ethics, in Opinion No. 40, noted that former Canon 4 also allows the judge to supply requested recommendations.

 Under [Canon 4], a judge is encouraged to write and otherwise contribute to improvements in the law and the administration of justice, to the extent that time permits. The writing of such a letter would not cast doubt on the judge's impartiality in hearing any issue, and it is therefore an appropriate quasi-judicial activity. The letter would offer specific knowledge of the personal and professional qualities pertinent to performance as a judge. The judge is thus uniquely able to contribute insight to the judicial selection process and thereby to the administration of justice.

Consistent with the foregoing, the Committee believes that judges may provide recommendations upon request. Any information provided by a judge should be an honest assessment of the candidate, limiting the response to the judge's knowledge of the candidate's qualifications or lack thereof.

The Committee finds nothing objectionable about a judge privately approaching an individual and requesting that the individual consider applying for judicial office.