July 5, 1984

Opinion No. 84/14

Dear

Your inquiry states that you have received a request from the Florida Parole and Probation Commission which asks you for your recommendation regarding a former client of yours who is seeking commutation of his sentence to prison. You have enclosed a copy of the request, which states that the Commission has been requested by the Office of Executive Clemency to provide a recommendation regarding commutation of the sentence, and the inquiry is made of you because you were the defense attorney when the individual in question was convicted and you represented him on appeal. The request from the Parole and Probation Commission concludes: "Any comment that you would care to make regarding this man's life sentence being set for a certain number of years would of course be appreciated."

The Committee has voted six to four against you making a response to the request from the Commission.

The majority of the committee relies on two prior opinions, Opinions No. 82/15 and 77/17, and are of the view that such a response would be prohibited by Canon 2B. Opinion No. 77/17 stated that a judge should not "voluntarily write a letter to the Parole and Probation Commission, identifying [himself] as a county judge, and recommending parole for an inmate." Opinion 82/15 states that a judge may not write a letter of recommendation "to the Clemency Board and the Board of Bar Examiners on behalf of an individual seeking a pardon and admission to the Bar exam." That opinion goes on to state:

In summary, a judge can write letters of recommendation, but may not write a voluntary character reference on behalf of persons involved in investigatory or adjudicatory proceedings, where legal rights, duties, privileges or immunities are ultimately determined. On the other hand, there is no prohibition against judges furnishing information in response to official inquiry.

The important distinction from the above statement is whether the judge is being asked to furnish information, perhaps information that he alone may have, or is being asked to give a character reference in investigatory or adjudicatory proceedings. From the wording of your inquiry, it seems the request to you is that you voluntarily give a recommendation, and this would be prohibited under Canon 2B and the prior opinions. The commentary following Canon 2B states that testimony as a character witness injects the prestige of the judicial office into the proceeding and may be misunderstood as an official testimonial.

A further difficulty may be the potential for conflict between your duty as an attorney not to reveal matters unfavorable to your former client, and your duty as a judge to be completely candid and truthful in your response to the Commission.

The members of the committee who voted that you could make a response did so on the basis that the inquiry was not necessarily "voluntary" and in violation of Canon 2B. One member pointed out that the inquiry was not self-generated and pointed to our Opinion No. 79/3, holding that there was no impropriety in a judge recommending a person for entrance into law school. Another member of the minority view points to our Opinion No. 75/22, where a parole and probation officer requested information concerning an attorney with whom the judge had had a great deal of experience.

As you can see, the opinions are very close in this area, and the committee is equally closely divided. The prior opinions can be reconciled to some extent by whether the response sought from the judge is in the nature of a character reference or is to supply information which the judge alone may have by virtue of personal contacts with the individual in question. Since your inquiry seems to involve a character reference type response, the majority of the committee recommends that you decline to respond.

Sincerely,

Anne C. Booth, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members

All reference to the inquiring judge is deleted from the copies sent to the following individuals.

Mr. Sid White, Clerk of the Supreme Court of Florida
Linda Yates, Managing Editor, The Florida Bar Journal
Mark Hulsey, Esq., Chairman, Judicial Qualifications Commission.
Hon. Howard T. Markey, Chairman, Ethics Advisory Panel of the Judicial Conference of the United States .
Jeffrey M. Shaman, Esquire, Director, Center for Judicial Conduct Organizations
Ms. Jean Underhill, Librarian, Broward County Law Library
Mr. Robert Wallace, Librarian, Dade County Law Library
Mr. Brian Polley, Librarian, Supreme Court of Florida

Participating members: Judges Booth, Carlisle, Dell, Green, Grube, Hewitt, Letts, Tedder and Turner, and Attorney Samuel J. Powers, Jr.