Question: A judge has asked the Ethics Advisory Committee about the propriety of judges initiating contact with judicial nominating commission members to provide information on candidates for judicial office.

Answer: A judge may offer unsolicited information to the nominating commission. Although providing information to individual commission members is discouraged, it is not unethical. The information must be an honest assessment of the candidate’s qualifications based on the judge’s professional familiarity with the candidate.

Discussion: Canon 2B governs this issue. Canon 2B states:

                      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.

This Canon prohibits a judge from allowing individuals or entities to use the judge’s title for profit or personal gain. The exception to this rule is employment applications. In Informal Opinion 91-2 the Committee stated that a judge may provide a letter of recommendation on behalf of an employment applicant when the judge is aware of the applicant’s professional qualifications. Employment recommendations are allowed even though the individual may gain personally by obtaining employment. The ability to offer recommendations is not absolute, however. In certain circumstances, the concern that the prestige of the judicial office may influence the recipient of the recommendation will override the judge’s ability to write such a letter. For instance, a judge cannot write a letter for a person seeking commercial funding for a business that will receive referrals from the court. See Informal Opinion 91-2.

Although this Committee has not addressed the issue directly, it is evident from opinions of this Committee and other states that a judge may write a letter of recommendation on behalf of an attorney seeking employment. The letter may be written even if the employer has not requested such a letter. This Committee has also determined that a judge may communicate with a judicial nominating commission about a judicial candidate. In Informal Opinion 94-5, the Committee stated that a judge may respond to an inquiry from a judicial nominating commission by providing "an honest assessment of the candidate, limiting the response to the judge’s knowledge of the candidate’s qualifications or lack thereof." The commentary to the model code of judicial conduct similarly states that "judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees seeking names for consideration, as well as responding to official inquiries concerning the person being considered for a judgship." Informal Opinion 94-5 and the model code commentary recognize that judges possess information which may be important to the selection process. Judges are encourage to share this information. The current opinion request raises two issues which have not yet been addressed by this Committee and are not expressly addressed by the commentary to the model code. The issues are whether a judge may offer an unsolicited information concerning a candidate’s qualifications and whether a judge may contact individual commission members, instead of, or in addition to, the commission as a whole.

In Informal Opinion 94-5 the Committee cited Opinion 40 of the California Judge’s Association Committee on Judicial Ethics. That opinion stated that "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 California opinion noted that judges are "uniquely able to contribute insight to the judicial selection process and thereby to the administration of justice." Judges are in a good position to offer information and assessments as to whether judicial candidates are suited for a judicial position. The primary issue for consideration is whether offering the assessment involves the prestige of the judicial office. Although judges are allowed to offer assessments upon request of a nominating commission, an argument could be made that through an unsolicited assessment the judge is attempting to use his or her office to influence the decision-makers. However, the Committee does not find such an argument to be sufficiently persuasive to overcome the general encouragement to judges to contribute to the improvement of the judicial system. As long as the judge provides an assessment that is honest and is based on personal knowledge of the applicant’s abilities for judicial office, the judge is not prohibited from offering an unsolicited assessment to a judicial nominating commission.

This conclusion is consistent with ethics advisory opinions from other states. For instance, the Maryland Judicial Ethics Committee, in Opinion 83, stated that a judge need not be asked for a recommendation, but may voluntarily offer such to "those who may be in a position to recommend appointments to the Governor." The Georgia Judicial Qualifications Commission, in Opinion 63, stated that a judge may send an unsolicited recommendation letter to a screening committee. The Georgia Commission noted that the letter does not involve the prestige of the judicial office, but is an assessment from someone who uniquely knows the qualifications of the candidate. Similarly, the Florida Committee, in Opinion 86-2, stated that a judge may communicate with a judicial nominating commission without being asked, as long as the information is "factual, succinct, and discrete."

The question that remains is whether a judge may contact an individual nominating commission member to offer such an assessment. The Committee does not believe that contacting individual commission members, as opposed to the commission as a whole, creates any greater concern that the prestige of the judicial office is involved. However, the Committee is concerned that such a practice may implicate the integrity of the judiciary in violation of Canon 2A. When contact is made with the commission as a whole, the information would be in writing and available to all members. If individual contact is made, the information would be oral. The member could relay the information, but the information would be subject to that member’s interpretation. Individual contact could also result in public perception that an atmosphere exists for "back room" deals to promote or hinder particular applicants.

Despite these concerns, the Committee is not prepared to declare individual contact as being unethical. As noted above, the Maryland Judicial Ethics Committee determined that a judge may contact individuals who are in a position to recommend appointments to the Governor. The Committee believes that such an approach is ethically permissible. Although the integrity of the judiciary is a concern, judges should be strongly cautioned concerning the content of the communications, rather than prohibiting the communications. Any communications should be an honest assessment of a candidate’s professional qualifications. Information should be clear and succinct to avoid misinterpretation.