FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2010-29
Date of Issue: August 2, 2010

ISSUE

May a judge write a letter of recommendation or commendation on behalf of a person previously convicted of a felony who is seeking a pardon from the Governor.

ANSWER: No.

FACTS

The inquiring judge became familiar with a person who served as case manager and court liaison between drug court and a mental health agency.  The individual did excellent work and the judge at various times expressed the judge's appreciation and admiration for this person's work.  This individual is a convicted felon and, through counsel, has requested that the judge write a letter of commendation in support of a request for a pardon from the Governor.

DISCUSSION

Canon 2B of the Code of Judicial Conduct provides that a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.  Canon 2B further provides that a judge shall not testify voluntarily as a character witness.  A letter of commendation to the Governor on judicial stationery in support of a pardon appears to lend the prestige of judicial office to advance the private interests of the petitioner.  Such a letter also appears to be written testimony as to character.

     However, the commentary to Canon 2B creates an exception for letters of recommendation:

Although a judge shall 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 persons information for the record in response to a formal request.

The foregoing revision of the Code was discussed in cases involving public reprimands of two judges for writing character reference letters to sentencing judges for criminal defendants.  In Re: Fogan, 646 So. 2d 191 (Fla. 1994), and In Re: Abel, 632 So. 2d 600 (Fla. 1994).  The Code makes clear that letters of recom-mendation to sentencing judges, probation officers or correction officers are not appropriate unless the letter is in response to a formal request.  However, the Commentary provides that a judge may otherwise serve as a reference or provide a letter of recommendation on judicial letterhead if the letters are based on personal knowledge and otherwise permitted by the Code.

This Committee has previously adhered to the view that a judge should not write voluntary character reference letters on behalf of persons involved in investigative and adjudicative proceedings.  In Fla. JEAC Op. 97-7, this Committee opined  that a letter of reference and support for an individual's use before the Florida Cabinet in an application for clemency was improper and in violation of Canons 1 and 2.  The same rationale applies to a letter of commendation in support of a petition for a pardon from the Governor.  An application for clemency from the Cabinet and a petition for pardon from the Governor are both governed by §940.03, Florida Statutes.

Although, the judge may not submit a letter  of recommendation or commendation in support of a petition for a pardon, the judge may write letters of commendation or recom-mendation for other purposes.  If the judge is impressed with the excellent work of a staff member, the judge may, upon personal knowledge, write a letter of commendation for the individual's employment file.  Like-wise, the judge is permitted to write a letter of recommendation, based upon personal knowledge, to a potential employer.

This opinion expresses no view on whether the proposed conduct is consistent with the substantive law pertaining to the inquiry.  This Committee only has authority to interpret the Code of Judicial Conduct, and therefore this opinion deal only with the issue of whether the proposed conduct violates a provision of that Code.

REFERENCES

Canons 1, 2B
Fla. JEAC Op. 97-7
In Re: Fogan, 646 So. 2d 191 (Fla. 1994)
In Re: Abel, 632 So. 2d 600 (Fla. 1994)
§940.03, Florida Statutes

_____________

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

For further information, contact: Judge Kerry I. Evander, Chair, Judicial Ethics Advisory Committee, Fifth District Court of Appeal, 300 South Beach Street, Daytona Beach, Florida  32114-5002.

Participating Members:
Judge Roberto Arias, Judge Robert T. Benton, II, Judge Lisa Davidson, Judge Kerry I. Evander, Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Jose Rodriquez, Judge McFerrin Smith, III, Judge Richard R. Townsend, Judge Dorothy Vaccaro, Dean Bunch, Esquire and Patricia Lowry, 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)