FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2013-08
Date of Issue: March 22, 2013

ISSUES

1.  May a judge write a letter of recommendation as part of a friend’s application process to the Department of Business and Professional Regulation for a real estate license, where the friend has a prior misdemeanor arrest and the purpose of the letter is to serve as additional information attesting to the friend’s “honesty, truthfulness, trustworthiness, good character and good reputation”?

ANSWER: No.

2.  If so, may the letter be on judicial letterhead?

ANSWER: No.

FACTS

The inquiring judge states that a friend has submitted an application for a real estate license with the Florida Department of Business and Professional Regulation (“Department”).  The inquiring judge, however, advises this Committee that the friend has a 1996 arrest for resisting without violence, which resulted in a plea of no contest and a withhold of adjudication.  The inquiring judge’s friend was told that additional information was needed to process the application, and that up to three “letters of recommendation from people who know of your honesty, truthfulness, trustworthiness, good character and good reputation” could be submitted to the Department.

DISCUSSION

From the facts provided, it appears that the additional letters of recommendation are being sought by the Department as character reference letters because of the friend’s prior misdemeanor arrest.  The friend is seeking a license to be a real estate sales associate/broker.  In Florida, a real estate license is a privilege, “subject to police power regulation because of its relation to the general welfare.”  Fla. Real Estate Comm’n v. Williams, 240 So. 2d 304, 307 (Fla. 1970).  Pursuant to section 475.17(1)(a), Florida Statutes (2012), the Florida Real Estate Commission (the “Commission”) “may adopt rules requiring an applicant for licensure to provide written information to the commission regarding the applicant’s good character.”   

The provision of the Code of Judicial Conduct that is relevant to the present inquiry is found in Canon 2.  Canon 2B provides: “A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others     . . . . A judge shall not testify voluntarily as a character witness.”  Fla. Code Jud. Conduct, Canon 2B.  The commentary to Canon 2B further provides that “[a]lthough 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.” 

In In re Fogan, 646 So. 2d 191 (Fla. 1994), the Florida Supreme Court reprimanded a judge for writing a character reference letter on official court stationery for a friend awaiting sentencing in federal court, finding that the judge had violated Canon 2.  The Florida Supreme Court found that the letter constituted “testifying” because Canon 2B “is sufficiently broad to encompass written statements voluntarily submitted with the knowledge and understanding that such statements may be used directly or indirectly in some adjudicatory proceeding.”  Fogan, 646 So. 2d at 192 (quoting Fla. JEAC Op. 75-6).  Additionally, the Florida Supreme Court stated that “the prohibition of Canon 2B is ‘limited to investigatory or adjudicatory proceedings either of an administrative, civil, or criminal nature where a person’s legal rights, duties, privileges or immunities are ultimately determined.”’  Fogan, 646 So. 2d at 194 n.3.
 
Similarly, “[t]his 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.” Fla. JEAC Op. 10-29 (judge may not write letter of recommendation on behalf of person previously convicted of a felony seeking pardon from the Governor).  See also Fla. JEAC Op. 88-19 (judge may not prepare letter of recommendation on behalf of disbarred attorney seeking re-admission to the Bar); Fla. JEAC Op. 75-6 (judges may not file good character letters with the Florida Supreme Court pending suspension of attorney convicted of tax evasion). 

The letter at issue is not the sort of letter of recommendation based on the judge’s personal knowledge which this Committee has stated is permissible under Canon 2.  See Fla. JEAC Ops. 07-06, 94-45, 79-3, 75-18 & 75-30.  Rather, based on the facts provided, it appears that the letter would be provided as additional information on the issue of “honesty, truthfulness, trustworthiness, good character and good reputation” because of the friend’s previous misdemeanor arrest.  Given this, the matter concerns an investigatory proceeding of an administrative nature where the privilege of obtaining a professional license is ultimately determined.  Under Fogan and Canon 2B, the inquiring judge should not provide the letter for the friend.

As to the second issue presented, whether the judge may write the letter on judicial letterhead, the commentary to Canon 2B provides that “a judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code.”  Because the character reference letter at issue is not otherwise permitted under the Code, the answer is no.

One member of the committee disagrees with this opinion’s conclusions.  First, to this member, it is not clear from the inquiry that the additional letters of recommendation are being sought by the Department as character reference letters because of the judge’s friend’s prior misdemeanor arrest, as opposed to typical protocol of the Department in its due diligence consideration of license applications.  This member concedes the conclusion may be true, but believes it is not evident based merely upon the language of the judge’s inquiry.

Second, even if the Department’s request for additional letters of recommendation resulted from the applicant’s prior misdemeanor, this member does not see this as an “investigatory proceeding” similar to those “investigatory and adjudicatory proceedings” referred to in Fla. JEAC Op. 75-6 or In re Fogan.  As noted, the Commentary to Canon 2B provides that “a judge may, based on the judge’s personal knowledge, serve as a reference or provide a letter of recommendation.” According to this member, the idea which appears in the prior Committee opinions and the Supreme Court’s opinions is to prohibit the judge from becoming a character witness in a proceeding which involves an investigation or adjudication directly related to an alleged or proven wrongdoing or violation of law or regulations, not to a typical review/investigation of an initial application for a professional license or certification.

This member believes the majority’s opinion should cause judges to be circumspect about writing any letter of recommendation unless the judge knows for a fact that the applicant (to law school, The Florida Bar, Real Estate or other profession) has had absolutely no prior violation of law or regulation or any other conduct which might cause the licensing or certifying entity to take a closer look at, i.e., “investigate,” the applicant.  This member surmises that many judges, pursuant to the Commentary, have written recommendation letters on letterhead for people whom they believe they know very well and have observed in circumstances which justify their high opinion of such people, yet the judges were unaware that the applicants had prior law or regulation violations or had committed other conduct which converted the typical application review process into an “investigation,” as the majority defines the term – thereby making the judges’ recommendation letters Code violations.

 

REFERENCES

In re Fogan, 646 So. 2d 191 (Fla. 1994); Fla. Real Estate Comm’n v. Williams, 240 So. 2d 304, 307 (Fla. 1970).

§ 475.17(1)(a), Fla. Stat. (2012).

Fla. Code Jud. Conduct Canons 2, 2B and commentary.

Fla. JEAC Ops. 10-29, 07-06, 94-45, 88-19, 79-3, 75-18, 75-30, 75-6.

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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 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 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 the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact the Committee Chair: Judge Jonathan D. Gerber, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia E. Lowry, Esquire, Judge Michelle Morley, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator