Informal Opinion 05-5
December 14, 2005

Question:   A judge has asked whether a judge is ethically restricted from making a referral to the Utah Crime Victim's Legal Clinic.

Answer:   A judge may refer a victim to the clinic as long as the referral is not based on an assessment of the victim's case or the quality of representation.

Discussion:   The Utah Crime Victim's Legal Clinic has been established through a grant from the National Crime Victim's Legal Institute and the U.S. Office for Victims of Crime. The clinic provides legal representation to crime victims. Representation is provided by a paid staff attorney, or through a roster of pro bono attorneys and law students. During a judicial conference, it was suggested that judges refer victims to the clinic. The requester has questioned whether judges may ethically refer victims to the clinic and, if so, whether there are any restrictions on such referrals.

The Utah Constitution and the Utah Code create and define victim's rights. Victims have the right to be informed about criminal proceedings, to attend certain proceedings, and to be represented throughout those proceedings. The Utah Code requires all "criminal justice agencies" to facilitate victims' rights.

Canon 2B states that a judge may not "permit others to convey the impression that they are in a special position to influence the judge." The Committee has addressed several circumstances involving this provision. In Informal Opinion 97-5, the Committee stated that a judge may not attend an administrative check-point or participate in a law enforcement ride-along because these situations may create the impression that law enforcement is in a special position to influence the judge. In Informal Opinion 97-9, the Committee stated that a judge may not be involved in the CASA Juror Checkoff Program. The Committee determined that judicial participation would create the impression that the CASA program is in a special position of influence with the court. In Informal Opinion 98-13, the Committee stated that a judge may not sign a letter of recommendation in support of a private counseling service and in Informal Opinion 99-1, the Committee stated that a judge could not refer juveniles to a counseling center on which the judge's spouse sat on the board of trustees. In each of these opinions, a deciding factor was that such a referral or recommendation could convey the impression that the entity was in a special position of influence.

In each of the above referenced opinions, the Committee addressed situations involving individuals or entities who might regularly appear before the judge. The clinic will also be an entity that regularly appears in court and therefore it is important that the entity not be allowed to convey the impression of special influence. However, there is a legitimate question as to whether simply making a referral to this entity would create that impression.

Although the Committee has never addressed such an issue, it is evident that a judge could never make a referral to a specific law firm. At the same time, there are circumstances in which judges refer individuals to legal providers. For example, in criminal cases a judge might be required to appoint a specific law firm to represent an indigent defendant. There are also circumstances in which a court might notify an individual of the availability of certain legal services, such as organizations that serve impecunious litigants.

A judge is often required to help guard the rights of certain individuals while also making certain that those individuals do not convey a special position of influence. A law firm referral would be prohibited because there is nothing that requires a judge to refer to such a firm and would involve a judge assessing an individual's case and assessing an attorney's qualifications to assist that individual. When appointing a defense firm to represent a defendant, a judge does not engage in such an evaluation. The appointment is based solely on the indigent status of the defendant. Therefore, if there is a means and mechanism by which a judge may refer a victim to the clinic without making an assessment of the victim's case or the quality of the representation, then such a referral would be permitted.

A judge could notify a victim of the existence of the Utah Crime Victim's Legal Clinic as long as the judge does not make any assessment of the victim's interests in making such a referral. Any referral should be on the same basis as referring an individual to an indigent defense or similar organization. The referral must be based solely on the individual's status as a victim, as defined in the Utah Code, and not on other criteria.

The Committee notes that, under the Utah Code, prosecuting attorneys have many duties and responsibilities for protecting the rights of crime victims. For example, prosecuting attorneys are required to notify victims of their right to attend important criminal justice proceedings. Because of these statutory responsibilities, a judge could also refer a victim to the prosecuting attorney for a discussion on rights, information and resources available.