SUBJECT: Whether a judge may submit a letter of
"reference" and "support" for a former
client's use before the Florida Cabinet
in an application for clemency
Canon 1 and Canon 2

The inquiring judge has received a request from a former client's lawyer to submit a letter of "reference" and "support" for the client's use before the Florida Cabinet in an application for clemency.

It is now quite clear that under Canon 1 and Canon 2 of the Code of Judicial Conduct, a judge must not testify voluntarily as a character witness. Although a judge may so testify when properly summoned, the judge should discourage a party from requiring the judge to testify as a character witness except under the most unusual circumstances. See, Code of Judicial Conduct, Commentary to Canon 2B. The Commentary further provides that 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." A judge who provides a character reference in connection with the sentencing process is treating a path fraught with danger. See, Inquiry Concerning a Judge Ward, 654 So 2d 549 (Fla. 1995); Inquiry Concerning a Judge, Fogan, 646 So 2d (Fla. 1994); Inquiry Concerning a Judge, Stafford, 643 So 2d 1067 (Fla. 1994); Inquiry Concerning a Judge, Abel, 632 So 2d 600 (Fla. 1994). Prior opinions of the Committee have considered the question of providing information to the
Clemency Board, and have adhered to the following view:

[A] judge...may not write a voluntary character reference letter on behalf of persons involved in investigatory or adjudicative proceedings, where legal rights, duties, privileges or immunities are ultimately determined. Opinion 82-15; 84-14

In the present instance, the judge has been requested by the former client's present lawyer to provide a letter of reference. Specifically, the letter from the present lawyer states, "if you have any comments or thoughts which you think may be helpful to (the client) in her clemency application..." the inquiring judge should contact the lawyer with this information. The present lawyer does not request factual information, but rather seeks the comment or thoughts of the inquiring judge on the clemency matter. The letter for the inquiring judge assumes that were he to respond to the request his response "may be taken as a letter of reference on behalf of (the client) from a sitting judge.

A clear majority of the Committee on Standards of Conduct Governing Judges agrees that the judge should not, given the present facts, provide a letter of reference to be used in the former client's clemency proceeding. One member of the Committee, however, finds that she is unable to respond to the request because the inquiring judge has not actually submitted to the Committee the comments he wishes to make on behalf of the former client. Although this member agrees that the judge should not make a personal recommendation about the client, she also states that if the judge has factual information that might be helpful to the clemency board, the judge should not be automatically precluded from giving this information.

In light of the comments of this member of the Committee, the Committee would remind the inquiring judge that although judges may testify as fact witnesses under certain circumstances, past Committee opinions have construed Canon 2b as requiring any testimony of a judge to be pursuant to a subpoena. See Opinion 97-1 and opinions cited therein. In the context of the Clemency Board, this Committee has observed, "[T]here is no prohibition against judges furnishing information in response to official inquiry." Opinion 82-15; 84-14

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 judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).

Dated the 20th day of March, 1997.

Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges

Participation Members: Judges Cardonne, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki

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