(OPINION 94-45
(Judicial Stationery
December 14, 1994 (Character Letters

In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated October 19, 1994

Your inquiry addresses two situations involving character reference letters on judicial stationery. The first is whether you are permitted to write a letter of "commendation" in response to a request by the supervisor of a clerk that works in your court. If not permitted, whether you may write a complimentary letter on official stationery directly to the clerk in appreciation of her work. The second scenario involves writing a letter to a law school dean praising a professor's work, or alternatively, sending a complimentary letter directly to the professor.

The Committee believes that the current status of character reference letters in light of the Supreme Court's Corrected Opinion in Re: Code of Judicial Conduct issued September 29, 1994 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 on official court stationery, 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.

In the opinion adopting the new Judicial Code of Conduct the Supreme Court states:

The Standards of Conduct Committee has supplemented its initial petition and has directed our attention to an asserted conflict between the proposed Canon 2B and recent decisions of this Court. Specifically, the Committee has questioned whether and under what circumstances a judge may write a character reference letter and under what circumstances a judge may use official court letterhead. The confusion over these issues was caused in part by our approval of the language used in the stipulation of fact and discipline in re Judge Abel, 632 So. 2d 600 (Fla. 1994). Although we believe that the proposed Canon 2B sufficiently addresses the issues raised by the Committee, we have added the following underscored language to the commentary regarding judicial letterhead: "Similarly, judicial letterhead must not be used for conducting a judge's personal business, although a judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code." We note that, in some instances, bar admission authorities and law schools solicit recommendations from judges.

If it is appropriate to send such a letter or to file a report, we find that a judge may use stationery that reflects the judge's office. We stress, however, that judicial letterhead must not be used for personal business. We find that the Committee on Standards of Judicial Conduct Opinions 75-18, 75-22, 77-17, 79-3, 88-19, 92-2, 92-30, and 93-1 are proper interpretations of the Canon.

Additionally, the commentary to Canon 2B of the new Code of Judicial Conduct effective January 1, 1995, states: "Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based upon the judge's personal knowledge, serve as a reference or provide a letter of recommendation."

Therefore, it is the opinion of nine members of this Committee that your first inquiry should be answered as follows:

Question 1(a): Since it is in response to a request by the clerk's supervisor and you have "personal knowledge", you may write the "commendation" letter on official court stationery under both the present and the new Code.

Question 1(b): Although, there is always some danger of improper use of letters written to compliment people you personally work with, the Committee believes a complimentary letter could be ethically written directly to the employee on court letterhead under both the present and new Codes.

One judge responded in the negative, noting that he did not believe commendation letters are contemplated by the revised Code.

As to your second inquiry involving commendation letters to a law school dean and to a law professor, eight of the members would answer parts (a) and (b) of your inquiry as follows:

Question 2(a): Although the Committee has some reservations about sending an unsolicited letter to the dean of a law school for placement in a personnel file, it would not violate the Code as long as it merely recited the judge's factual observations concerning the competence and ability of the professor and was not misuse or abuse of the prestige of the office.

Question 2(b): The better approach would be to write the complimentary letter directly to the professor, assuming it is otherwise ethically appropriate, and let the professor supply it to the dean.

Two members would adopt the caveat that, "Accordingly, I would caution the judge that while her proposed letter does not appear to violate the Canons, she must be sensitive enough to avoid entering a situation in which the purpose of the recommendation would be not merely to state complimentary factual matters, but rather to lend the judge's prestige to another individual's effort to gain a competitive edge in his or her employment."

Two judges were of the opinion such commendation letters and letters for use in seeking tenure would be improper. One judge felt that, "I would not want to write such a letter if I had first-hand knowledge that the recipient was going to publish the letter for self-laudatory purposes. Writing an unsolicited letter directly to the dean of a law school is, in effect, leaning on the dean to some extent which would be improper."

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
Governing Judges

CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)

Participating Members: Judges Dell, Doughtie, Farina, Green, Kahn, Patterson, Rushing, Silverman, Taylor, Tolton