Opinion 14-180

December 11, 2014

Digest:         A judge who regularly refers litigants to a residential substance abuse treatment facility may write a letter supporting the facility’s application to become a participating service provider for insurance purposes.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(iii); Opinions 10-115; 08-112; 00-44 (Vol. XIX); 97-71 (Vol. XVI); 88-94 (Vol. II).

Opinion:

         A judge who regularly refers litigants to an out-of-county residential substance abuse treatment facility asks whether he/she may write a letter supporting the facility’s application to a New York State agency for approval as a “Health Home” service provider.¹ If the facility’s application is granted, the treatment the facility provides to residents who reside in the county where the judge presides will be covered by certain health insurance plans, thus making their ordered treatment more affordable to litigants in the judge’s court.

         A judge must always avoid impropriety and 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 must not lend the prestige of judicial office to advance the private interest of others (see 22 NYCRR 100.2[C]). Nonetheless, a judge may make recommendations to public and private fund-granting organizations on “projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3][b][iii]).

         The Committee previously has advised that a local court justice, as president of a county magistrates association, may write a letter to the American Probation and Parole Association in support of a grant application for funds to provide services that will benefit crime victims (see Opinion 08-112).² The Committee also has advised that a judge may write a letter directly to a governmental agency or foundation in support of a non-profit or government agency’s program which regularly provides services to the court (see Opinion 88-94 [Vol. II]); may permit a professor conducting a scholarly research project concerning jurors’ memories during jury deliberations to include the judge’s name and curriculum vitae in an application for a grant to fund the research project (see Opinion 10-115); may write a letter on behalf of an organization seeking funding from the New York State Division of Criminal Justice Services to develop a legal advocacy component in the area of domestic violence (see Opinion 97-71 [Vol. XVI]); and, may co-chair a steering committee seeking a community access grant from the federal government to integrate and expand mental health services for children and families in the community (see Opinion 00-44 [Vol. XIX]). In each case, the judge made recommendations supporting grant requests for projects and programs directly concerning the law, the legal system or the administration of justice (see 22 NYCRR 100.4[C][3][b][iii]).

         Although this inquiry does not involve a traditional grant application, as such, the Committee believes a similar analysis applies. Specifically, the treatment facility to which the judge regularly refers litigants is applying for a particular status which will increase the facility’s eligibility for insurance reimbursement. The increased insurance coverage will also help make court-ordered services or treatment, intended to prevent repeat offenses, more affordable for litigants in the judge’s court. As this effort involves the law, legal system and administration of justice, the judge may write the requested letter.

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         ¹ The judge explains that there is no comparable service provider operating within the judge’s county.

         ² Because the American Probation and Parole Association provides services to crime victims only, the local justice could write a letter only if the Public Defender and the District Attorney did as well.