FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2007-06
Date of Issue: April 3, 2007

ISSUES

Whether a judge may write a letter of recommendation for a former staff attorney who has applied for a Harvard Law School Heyman Fellowship.

ANSWER: Yes.

FACTS

The inquiring judge’s former staff attorney has applied for a Harvard Law School Heyman Fellowship. The founder of the Heyman Fellowship program believed that Harvard Law Students who work for the federal government would have a unique opportunity to shape public policies and legal initiatives. Therefore, these fellowships were designed to encourage former Harvard Law students to enter public service in government jobs by offering them honoraria and partial repayment of student loans. The award can be as much as $30,000 per person. The website describing this program states:

The Heyman Fellowship is designed to afford financial support and a community of peers to young Harvard Law School graduates who have secured a position in federal government. . . . In exchange for the financial support, Heyman Fellows agree to spend at least three years in federalgovernment, and to act as mentors to Harvard Law students and graduates interested in federal government work. Each Heyman Fellow will receive an honorarium of $5,000. In addition, selected Heyman fellows are eligible to receive loan repayment assistance of up to $25,000 over the duration of their Fellowship, depending on their overall debt load.

Harvard Law School http://www.law.harvard.edu/acedemics/fellowships/heyman/description.php (last visited March 22, 2007).  The website describing this program also states:

The Heyman Fellowship Program is designed to eliminate some of the financial disparity between government and the private sector to enable those who want to work in the federal government to do so.
  
Id.

The inquiring judge asks if it is ethically permissible for the judge to write a letter of recommendation for the judge’s former staff attorney who is seeking to obtain a Heyman Fellowship.

DISCUSSION

Canon 2B of the Code of Judicial Conduct states that a judge should not lend the prestige of judicial office to advance the private interests of others. Although letters of recommendation written by a judge are intended to advance the private interests of another, the Commentary to Canon 2B specifically permits judges to write reference letters based on the judge’s personal knowledge, and the judge may use official stationery for the purpose.

     Since the inquiring judge and the judge’s former staff attorney worked together, the inquiring judge is able to write a letter of recommendation based on the judge’s personal knowledge. When an attorney’s employment is as a staff attorney for a judge, the judge is uniquely qualified to comment on the staff attorney’s work performance.  If the judge were unable to attest to the staff attorney’s work performance, it is unclear who could.    

     Prior opinions of this committee opined that it is ethically permissible for judges to write reference letters on judicial stationery on behalf of persons seeking employment or entrance to law school. See In re Code of Judicial Conduct, 643 So. 2d 1037, 1039 (Fla. 1994); Fla. JEAC Ops. 94-39, 79-3 & 75-30.  Judges have been permitted to write unsolicited letters to Judicial Nominating Commissions or the Governor on behalf of candidates seeking appointment to a judicial position.   See Fla. JEAC Ops. 95-24, 89-15 & 88-01.

     The Commentary to Canon 2B and previous opinions of this committee provide authority for the view that the proposed conduct by the inquiring judge is ethically permissible.

One member of the committee feels that, to the extent the Heyman fellow serves as a mentor in exchange for the $5,000 honorarium, the situation closely  resembles employment.  This committee member also notes that the inquiring judge does not propose to advocate loan payment assistance for the judge’s former staff attorney at the expense of any other fellow:  in this regard, the proposed recommendation would be analogous to a recommendation for admission to law school which might or might not lead to scholarship assistance.

REFERENCES

Fla. Case: In re Code of Judicial Conduct, 643 So. 2d 1037, 1039 (Fla. 1994).

Fla. Code Jud. Conduct: Canon 2B and Commentary to Canon 2B.

Florida Judicial Ethics Advisory Committee Opinions: 95-24, 94-39, 89-15, 88-01, 79-3 & 75-30.

_____________

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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 by the Committee. 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. Id.

 

For further information, contact Robert T. Benton, II, Chair, Judicial Ethics Advisory Committee, 301  S. MLK Jr. Blvd. Tallahassee, FL 32399.

Participating Members:
Judge Robert T. Benton, II, Judge Lisa Davidson, Judge T. Michael Jones, Judge Michael Raiden, Judge Jose Rodriquez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vaccaro, Patricia Lowry, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
Inquiring Judge (Name of inquiring judge deleted from this copy)