FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2018-10
Date of Issue: June 2, 2018

ISSUE

Whether there is any stage in the investigative process of the Florida Board of Bar Examiners where a judge can voluntarily write a letter commenting on the character and fitness of an applicant for membership to The Florida Bar?

ANSWER: No.

FACTS

The inquiring judge seeks guidance from this body regarding the judge’s desire to submit a character reference letter on behalf of a Florida Bar applicant. The Florida Board of Bar Examiners (“FBBE”) is engaged in evaluation of the fitness of the applicant to be a member of the Florida Bar. The process is governed by the Rules of the Supreme Court Regulating Admission to the Florida Bar (“FBBE Rules”). Pursuant to the FBBE Rules there are three levels of inquiry by the FBBE. The first level, the application stage, is where application is made seeking Bar membership. The final two stages are a part of the investigative process. The inquiring judge wants to know if it would be appropriate to submit a character reference letter at any of the three stages.

The procedures outlined in the three levels of Florida Board of Bar Examiners’ investigation as stated in the FBBE Rules are:

  1. The Application - Rule 2-20: Here, an applicant submits an application for admission. Upon filing the application, the Board initiates a “character and fitness investigation.” The application requires the applicant to include five personal references “who have known the applicant well within the past 5 years, including full names, current mailing addresses, and telephone numbers.” The FBBE sends a questionnaire to the references to fill out and return.
  2. Informal Investigative Hearing - Rule 2-22: If there is concern about an applicant’s character and fitness for admission, the FBBE will schedule the applicant for an informal hearing before three Board members. The hearing is akin to a deposition, where the Board members ask questions concerning areas of concern. The applicant is free to submit any materials s/he thinks will assist the FBBE in making a decision about Bar admission, including character reference letters.
  3. Formal Hearing - Rule 3-23.2: If, after the informal hearing, the FBBE finds there are grounds that warrant denying the applicant admission to the Bar, the FBBE will issue “specifications” (formal charges similar to a charging document) which specify the grounds for denial of admission and set the matter for a formal hearing. The formal hearing is essentially a trial. Applicants can submit character reference letters at this stage also, usually to show that even if they transgressed in the past, they have now rehabilitated themselves and deserve admission to the Bar.

 

DISCUSSION

The Florida Code of Judicial Conduct, Canon 2B, prohibits a judge from using the “prestige of judicial office to advance the private interests of the judge or others.” Canon 2B also prohibits judges from voluntarily serving as a character witness. The commentary to Canon 2B states, in pertinent part, “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation. However, a judge must not initiate the communication of information to a sentencing judge or a probation or corrections officer but may provide to such persons information for the record in response to a formal request.” Consistent with Canon 2B, we have counseled that a judge may write letters of recommendation based upon the judge’s personal knowledge of the party making that request. See Fla. JEAC Op. 07-06 (a judge may write a letter of recommendation for a former staff attorney who has applied for a law school fellowship because the judge worked with and could base the recommendation on personal knowledge); Fla. JEAC Op. 94-45 (a judge may write a recommendation letter in non-investigatory or adjudicatory proceedings). If the judge receives an inquiry or questionnaire about a particular person the judge is familiar with we have advised that a judge may respond to these inquiries including inquiries, as is the case here, sent by the FBBE or by the Florida Bar. See Fla. JEAC Op. 88-19 (a judge may complete and return a questionnaire received from the Florida Board of Bar Examiners); Fla. JEAC Op. 86-10 (a judge may respond to an official inquiry or request from the Florida Bar); Fla. JEAC Op. 82-15 (there is no prohibition against judges furnishing information in response to official inquiry from the Board of Bar Examiners); Fla. JEAC Op. 96-6 (a judge may complete and return a questionnaire from the Florida Board of Examiners).

We have similarly advised that it is permissible for a judge to respond to inquiries from other administrative bodies seeking information about a particular person with whom the judge is familiar. See Fla. JEAC Op. 75-22 (“furnishing of information pursuant to a request by a Florida Parole and Probation Officer, under the auspices of a judicial officer is permissible, and is not considered as ‘testifying voluntarily as a character witness.’”); Fla. JEAC Op. 75-18 (“furnishing of information pursuant to a request by a probation official . . . is not considered testifying voluntarily.”); Fla. JEAC Op. 77-10 (holding it was proper for a judge to respond to an inquiry from a United States Army Judge Advocate to write a letter regarding qualifications of attorney in judge’s circuit who is applying to JAG corps).

However, we have consistently advised that where legal rights, duties, privileges, or immunities are subject to inquiry and determination a judge may not voluntarily write a letter of recommendation or comment on the character of the person being investigated. See Fla. JEAC Op. 94-45 (a judge “may not write a voluntary character reference letter on behalf of persons involved in investigatory or adjudicating proceedings where legal rights, duties, privileges, or immunities are ultimately determined.”); Fla. JEAC Op. 04-22 (“ . . . it is clear that Canon 2(B) precludes a judge from submitting character letters or affidavits on behalf of a person involved in a Bar disciplinary proceeding.”); Fla. JEAC Op. 82-15 (a judge may not  voluntarily write a character reference letter on behalf of a person involved seeking a pardon and admission to the Bar Examination); Fla. JEAC Op. 10-29 (a judge may not write a letter of recommendation on behalf of a person previously convicted of a felony who is seeking a pardon from the Governor); Fla. JEAC Op. 97-7 (a letter of reference support for use before the Florida Cabinet in an application for clemency was improper and in violation of Canons 1 and 2).

Because the party for whom the inquiring judge seeks to write a letter is engaged in an administrative proceeding where the applicant seeks to obtain legal rights, duties, privileges or immunities, there is no stage at which the inquiring judge may voluntarily seek to engage in the process by writing a letter. “A written statement bearing upon the character of an individual involved either in a civil, criminal, or administrative proceeding would result in injecting the prestige of the judge’s office into that proceeding to the same extent as if he voluntarily appeared at such proceeding and testified.” Fla. JEAC Op. 75-06.

 

REFERENCES

Florida Code of Judicial Conduct Canon 2B
Rules of the Supreme Court Regulating Admission to the Florida Bar 2-20; 2-22; 3-23.2
Fla. JEAC Ops. 75-06; 75-18; 75-22; 77-10; 82-15; 86-10; 88-19; 94-45; 96-6; 97-7; 04-22; 07-06; 10-29.

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The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate.

Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission, and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions of the Committee. See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997).However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside.  The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

For further information, contact Judge Miguel de la O, Chair, Judicial Ethics Advisory Committee, Eleventh Circuit, Miami-Dade County Courthouse, 73 W. Flagler Street, Room 1407, Miami, FL 33130.

Participating Members:
Judge Michael F. Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Barbara Lagoa, Judge Spencer D. Levine, Judge Michael Raiden and Charles Reynolds, Esquire.


All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady, Justice Liaison
John A Tomasino, Clerk of Supreme Court
All Committee Members
Executive Director of the Judicial Qualifications Committee
Office of the State Courts Administrator