Opinion 05-107

October 27, 2005

Digest:         A judge should not write a letter of recommendation on behalf of an attorney applying for a life insurance policy.

Rule:            22 NYCRR 100.2(C); Opinions 88-10 (Vol. I); 88-166 (Vol. III); 89-73 (Vol. III); 90-46 (Vol. V); 93-26 (Vol. XI); 95-33 (Vol. XIII).

Opinion:

         A judge inquires whether it is permissible to write a letter of recommendation on behalf of an attorney, who is an acquaintance who is applying for a life insurance policy. The attorney had been addicted to a controlled substance, but has since been rehabilitated for several years, according to the judge.

         The Committee has previously determined that a judge may write letters of reference in various circumstances, including on behalf of college and law school applicants, admission to the bar, and in a variety of other circumstances. See, e.g. Opinions 88-10 (Vol. I); 88-166 (Vol. III); 90-46 (Vol. V); 93-26 (Vol. XI). However, in other situations the Committee has concluded that a judge should not write such letters where the proposed circumstances appear to violate the Rule prohibiting a judge from serving voluntarily as a character witness. 22 NYCRR 100.2(C). For example, where a judge was asked to write a letter of recommendation on behalf of a long-time client who was applying for a pistol permit (Opinion 95-33 [Vol. XII]), or where judges were asked to write letters giving character references on behalf of two lawyers, one awaiting sentence on a felony conviction, and the other seeking reconsideration of disbarment by the Appellate Division (Opinion 89-73 [Vol. III]), the Committee advised against complying with the requests.

         The proposed letter of reference in this inquiry appears to fall within the Rule prohibiting a judge from serving voluntarily as a character witness and from lending the prestige of judicial office to advance the private interests of others. 22 NYCRR 100.2(C). It is presumed that the insurance company could deny life insurance coverage to the attorney as a result of the prior drug addiction, unless satisfied that he/she has been fully rehabilitated. Therefore, the judge would be vouching for the attorney’s recovery, something the judge may not have first-hand knowledge of, and, the insurance company might thus give credence to the judge’s opinion on account of his/her judicial position. Under such circumstances, the judge should not write the letter of recommendation.

         Nothing set forth herein is intended to preclude the judge from responding to an official inquiry from a governmental agency or a subpoena.