Opinion 14-33

April 24, 2014

Digest:         A judge may not, at the request of a friend who is seeking permission from a government agency to enter a foreign country, provide a letter of recommendation for submission to the government agency.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 11-16; 10-188; 08-211; 03-51; 03-47; 02-123.

Opinion:

         The inquiring judge asks whether he/she may, at the request of a friend who is seeking permission from a government agency to enter a foreign country, provide the friend’s lawyers with a letter of recommendation on official letterhead for submission to the government agency.

         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 applying Section 100.2(C), the Committee has distinguished between “a strictly private situation, e.g. a letter of reference on behalf of a job applicant known to the judge,” and a letter supporting an individual’s application to a government agency “to make a decision with substantial public implications” (Opinion 03-47). In the latter situation, much greater caution is needed to avoid creating an appearance that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency (see 22 NYCRR 100.2[C]).

         Thus, the Committee has advised that Section 100.2(C) precludes a judge from providing, at the request of the applicant, a letter of good character on behalf of the judge’s dog walker that would be submitted to the United States Embassy in a foreign country to support a visa application by the dog walker’s future spouse (see Opinion 02-123); a letter to the New York State Department of Labor supporting an application for “Alien Labor Certification” at the request of an individual known to a judge and the judge’s family as a waiter who works for a neighborhood restaurant (see Opinion 03-47); or a letter to the Immigration Naturalization Service on behalf of a member of the judge’s religious institution attesting to the member’s good character and requesting an expedited exclusion hearing (see Opinion 03-51).

         Indeed, the Committee has advised that a judge may provide such letters only in response to a direct request from the government agency involved (see e.g. Opinions 03-51; 03-47). In this connection, the Committee has advised that “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” (Opinion 11-16). Responding to a government agency’s request for information about an applicant does not raise the same concerns that the judge is voluntarily testifying as a character witness or improperly lending the prestige of judicial office to advance private interests before a government agency (see 22 NYCRR 100.2[C]; see also e.g. Opinion 08-211 [a judge may not voluntarily provide a reference for an attorney in support of the attorney’s application to adopt a child but 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 the judge’s personal knowledge of the attorney’s character]).¹

         Accordingly, consistent with prior opinions, the Committee concludes that the inquiring judge may not, at the request of a friend who is seeking permission from a government agency to enter a foreign country, provide a letter of recommendation for submission to the government agency (see e.g. Opinions 08-211; 03-51; 03-47; 22 NYCRR 100.2[C]).

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     ¹ Similar principles also apply in the context of disciplinary proceedings and criminal prosecutions (see e.g. Opinions 11-16 [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 and may respond to a direct request from the Office of Court Administration]; 10-188 [a judge may not provide a character reference letter to the District Attorney at the request of a relative of the defendant, even if the judge would write without revealing his/her judicial status, but may provide such a letter only in response to the District Attorney’s direct request]).