Opinion 05-60

June 9, 2005

Digest:         A judge, presiding in the County, Family, and Surrogate Courts should not provide a reference for the foster parent application of a friend since such applications are heard in Family Court.

Rule:            22 NYCRR 100.2(C)

Opinion:

         A judge, presiding in the County, Family and Surrogate Courts, asks if it is ethically permissible to provide a reference for the foster parent application of a friend.

         The judge has known the person for many years and the latter has requested the judge to write a letter concerning his/her character and fitness to become a foster parent.

         The Committee is of the opinion that the judge should not provide the reference letter. The Rules Governing Judicial Conduct require a judge to avoid the appearance of impropriety in all of the judge’s activities, and specifically state that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.” 22 NYCRR 100.2(C).

         Under the particular circumstances presented, where the inquiring judge presides in the Family Court where decisions regarding foster care cases are rendered, and representatives of foster care agencies, social service departments, and law guardians regularly appear before the judge in such cases, a letter of reference directed to the appointing authority might readily create the impression that the judge is lending the prestige of judicial office to advance the private interest of another.

         Furthermore, notwithstanding that §100.2(C) of the Rules prohibits a judge from voluntarily testifying as a character witness, nothing herein prevents the friend from submitting the judge’s name as a reference, thereby enabling the judge to respond to an official request for information about the friend.