Opinion 08-211

December 4, 2008

Digest:         A judge may not voluntarily provide a reference for an attorney in support of the attorney’s application to adopt a child but, because the applicant is well known to the judge and occasionally appears in the judge’s court, the judge may permit the applicant to submit the judge’s name to the adoption agency as a reference and, thereafter, respond to the adoption agency’s inquiry about the attorney’s fitness to adopt based on his/her personal knowledge of the attorney’s character.

Rules:       22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 07-182; 06-156; 05-107; 05-60; 96-117 (Vol. XV); 95-33 (Vol. XIII); 93-26 (Vol. XI).

Opinion:

         An attorney has asked the inquiring judge to write a letter of recommendation in support of the attorney’s and the attorney’s spouse’s application to adopt a child. The judge indicates that the attorney is well known to the judge and occasionally appears before him/her. The judge further advises that the recommendation will become part of the file to be considered by the court that will preside in the adoption matter, which is located in the same county where the judge presides. The judge asks whether he/she may write the letter of recommendation.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). Therefore, a judge shall not lend the prestige of judicial office to advance the private interests of others, and shall not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).

         Whether a judge may provide a reference is dependent on the facts of each situation (see 06-156). For example, under the appropriate circumstances, a judge may write a letter of reference that reflects the judge's opinion of a person's character or work history if the judge has worked with the person and has reliable personal knowledge of the person’s expertise (see id., citing Opinion 93-26 [Vol. XI). However, the Committee has consistently advised that judges should not voluntarily provide character references (see Opinion 05-107 [judge should not write letter of recommendation on behalf of an attorney’s application for a life insurance policy]; Opinion 95-33 [Vol. XIII] [judge may not write letter of reference to sheriff in connection with client’s application for pistol permit]); Opinion 96-117 [Vol. XV] [judge may not, at request of judge seeking reappointment, submit letter in support thereof to the Mayor’s Committee on the Judiciary]). Instead, under the appropriate circumstances, a judge may permit an individual to submit the judge’s name as a reference so that the person or entity considering an applicant for a job, school admission or other position may contact the judge directly about the applicant (see Opinion 07-182).

         In the present inquiry, the judge indicates that he/she knows the attorney well and that the attorney occasionally appears in his/her court. Therefore, it is the Committee’s view that, while the judge may not submit the letter at the attorney’s request, he/she may permit the attorney to submit his/her name to the adoption agency as a reference. Thereafter, should the adoption agency contact the judge directly, he/she may respond to the agency’s inquiry as to the attorney’s fitness to adopt based on his/her personal knowledge of the attorney’s character.