Opinion 11-16

January 27, 2011

Digest:         A judge may not, at the request of a court employee, provide a letter for use in the employee’s disciplinary proceeding before the Office of Court Administration, but may authorize the employee to provide the judge’s name as a reference. Based on his/her personal knowledge and observations of the employee, the judge may then respond to a request from the Office of Court Administration for information about the employee.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 05-34; 99-101 (Vol. XVIII); 90-156 (Vol. VI).

Opinion:

         A judge asks whether he/she may write a letter on behalf of a court officer for use in the court officer’s disciplinary proceeding before the Office of Court Administration (OCA). The judge states that the court officer previously pleaded guilty to a misdemeanor in another county, and, as a result, OCA has placed the court officer on probation. The court officer has asked the judge to write a letter asking OCA to permit the officer to carry a firearm during his/her probation.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (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]).

         In Opinion 05-34, the Committee advised that a judge may not, at the request of a court interpreter facing disciplinary charges, write a letter attesting to the interpreter’s “good character, work ethic and job performance.” The Committee noted that “voluntarily writing such a letter in a professional disciplinary matter would be tantamount to testifying as a character witness” and that a judge must not “lend the prestige of judicial office to support the private interests of others” (id.). The judge could only provide such a letter “in response to an official inquiry from a hearing officer or the disciplinary authority” or in “respon[se] to a subpoena” (id.).

         Here, too, the judge may not write a letter at the court officer’s request to a disciplinary authority within OCA regarding the court officer’s fitness to carry a firearm during his/her period of probation (see 22 NYCRR 100.2[C]; Opinions 05-34; 90-156 [Vol. VI]). Of course, a judge may honor a request received from an appropriate agency, court or official for the judge’s views in the same manner as the judge would honor a subpoena (see Opinions 05-34; 90-156 [Vol. VI]). Thus, if the judge wishes, the judge may authorize the court officer to provide the judge’s name as a reference so that the disciplinary authority may contact the judge concerning the matter (see Opinions 99-101 [Vol. XVIII]; 90-156 [Vol. VI]). If OCA then asks the judge to comment on the court officer’s fitness to carry a firearm, the judge may do so based on his/her personal knowledge and observations of the court officer.