September 6, 1994
PERSONAL AND CONFIDENTIAL
(Opinions 79-3 and 82-15
Re: Committee on Standards of Conduct Governing Judges
Your Inquiry dated August 2, 1994
You have requested clarification of Opinion 79-3, which found no impropriety in recommending a person for entrance to law school, and Opinion 82-15, which found that a judge may write voluntary letters of recommendation on behalf of persons not involved in investigatory or adjudicatory proceedings, and the recent Florida Supreme Court Opinion in Inquiry Concerning A Judge, Re: Robert C. Abel, Jr., 632 So. 2D 600 (Fla. 1994) which bars writing character witness letters on official court stationary.
In an effort to provide useful guidance, the Committee believes that a brief review of the history of this issue would be instructive. Generally, Committee opinions have been consistent in their application of Canon 2B inasmuch as they allow judges to write letters of recommendation, excepting specific circumstances which might reflect misuse or abuse of the prestige of the judicial office, to educational institutions on behalf of persons whom they have actual knowledge based on personal observation. See Opinion 75-19 (Law school admission and admission to Bar or private employment): Opinion 79-3 (law school) and Opinion 93-10 (letter of support for placement of pre-law magnet program at judge's local high school alma matter in Federal grant application with nonsolicitation of funds disclaimer).
Similarly, several opinions indicate that a judge may write a letter of recommendation for a person applying for employment or appointment if the judge has actual knowledge and communicates factual information regarding character, knowledge, skills and ability relevant to the job in question or relevant to professional competence generally. See Opinion 75-18 (former employee who worked under judges supervision. Opinion 86-2 (factual, succinct, discreet statement concerning a person whose application is pending before a Judicial Nominating Committee); Opinion 89-15 (letter of support of a candidate for judicial appointment to the Judicial Nominating Committee) and Opinion 93-32 (factual letter to President of the United States regarding and appointment to the Board of Directors of the Legal Services Corporation).
The opinions are also consistent in asserting that a judge may not initiate a letter of recommendation to and investigatory or adjudicatory body determining rights, duties, privileges or immunities of a person requesting that the judge contact the body on his or her behalf. See Opinion 75-6; (character reference letters); Opinion 77-10 (Canon 2 prohibition against investigatory or adjudicatory proceeding does not apply to JAG Corps application); 82-15 (letter of recommendation to Clemency Board and Board of Bar Examiners) and Opinion 88-26 (letters of recommendation for law clerks.)
Because neither the current Canon 2 nor the commentary directly address the issue of voluntary letters of recommendation and because this Committee has consistently found that within the above mentioned limitations, such letters are prohibited, this Committee has proposed substantial changes to the commentary to the Canon 2 (b) of the Code of Judicial Conduct as follows:
Although a judge should be sensitive to possible abuse of the prestige of office, 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 person information for the records in response to a formal request.
A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. A judge may testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.
Although several prior opinions approve letters of recommendation, no prior opinions of this committee specifically address the use of official court stationery once it has been determined that a particular letter of recommendation would be otherwise permitted by the court.
However, a review of both opinions which approve letters of recommendation and those which specifically disapprove the use of judicial letterhead or reference to judicial position indicate that this Committee has, at least tacitly, recognized that the fact that a judge is a trusted public official in a career that requires certain analytical abilities, a high level of honesty and integrity, and that provides the judge with and opportunity to observe these qualities in another may be highly relevant to the recommendation itself. See Opinion 81-8 (not use judicial stationery when making complaint to businesses); Opinion 92-2 (not use judicial letterhead for thank you notes); Opinion 92-30 (senior judge could not use judicial stationery to solicit work as mediator) and Opinion 93-22 (several members cautioned judge to use personal stationery without reference to judicial office in a letter sent to organize group that promotes intergroup relations).
However, in February the Supreme Court of Florida issued an opinion entitled Inquiry Concerning A Judge, Re: Robert C. Abel, Jr., 632 So. 2D 600 (Fla. 1994). In this opinion the Court adopted a stipulation entered into between Judge Able and the Florida Judicial Qualifications Committee (JQC) in toto. The stipulation which was adopted by the Court specifically holds "...it is a violation of Canon 2 of the Code of Judicial Conduct for a judge to write a character witness letter for any individual on official court stationery or to testify as a character witness in any proceeding except in response to an official witness subpoena." (Emphasis added.)
On July 28, 1994, Tom Edwards, Esq., as attorney for this Committee filed a Motion for Leave to File Supplemental Comments Addressing Potential Area for Conflict and Confusion Under the Proposed Rules and Additional Comments Relating to Potential Conflict Between Recent Decision and the Proposed Rules of Judicial Conduct Canon 2 (B) with the Supreme Court of Florida. Said additional comments point out this Committee's concern about the language in the stipulation adopted in the Abel decision and respectfully requests the Court to review the language of the Abel decision, to consider the proposed commentary to Canon 2 and to provide letterhead for character witness letters as opposed to a judge's personal stationery and or content of a letter that identifies the judicial office.
In light of this background, three members of the Committee suggest that we end the opinion at this point and furnish you a copy of our Committee Attorney's Motion For Leave to File Supplemental Comments, which you will find enclosed. One member would decline to respond on the premise that this Committee does not give hypothetical circumstance opinions.
With the understanding that the Abel decision as written only proscribes "...a judge from writing a character witness letter for any individual on official court stationery..." and with the caveat that given the current status of this issue, either the Supreme Court or the JQC may ultimately came to a different conclusion, four members of this Committee believe that the current standard for a letter of recommendation is as follows:
Except as specific circumstances might reflect misuse or to abuse the prestige of the judicial office, a judge may write a recommendation letter, but 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. The opinion given must be based on the judge's actual knowledge and personal observation of the individual's relevant credentials and the judge must use personal stationery privately purchased by the judge. Additionally, there is no blanket prohibition against a judge indentifying himself or herself as a judge in the letter.
Using this standard, they would answer each of your questions as follows:
1.Does this mean that a judge, under any circumstances, is precluded from every making any recommendation or attesting to the abilities of a person when the judge has specific knowledge of those abilities and is able to make fair comment about those abilities? No. The Committee's position is that pursuant to the Abel decision, only use of official court stationery is prohibited.
2.Is a judge precluded from writing a recommendation to a law school or medical school on official stationery or personal stationery? Under the Committee's interpretation of the current Abel decision, only use of official court stationery is prohibited.
3. If it is only acceptable on personal stationery, may the judge indicate the judge's profession? Yes, unless there are specific circumstances which might reflect misuse or abuse of the prestige of the judicial office. The fact that a judge is a trusted pubic (sic) official in a career that requires certain analytical abilities, a high level of honesty and integrity, and that provides the judge with an opportunity to observe these qualities in another may be highly relevant to the recommendation itself.
4.Is a judge precluded from writing a recommendation letter regarding employment opportunities when the judge has personal knowledge of the applicant's professional qualities and work habits? No, with the caveat a judge should not use official court stationery.
5.May a judge respond when an organization or business has contacted the judge because the applicant had listed the judge as a character reference? Yes, with the caveat that a judge should not use official court stationery.
The 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 judges, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 327 So.2d 5 (Fla. 1976).
Very truly yours,
Steve Rushing, Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Doughtie, Farina, Green, Kahn, Patterson,
Rushing, Taylor, Tolton, and Edwards, Esq.
Created 7.13.97 by DAF