Opinion 14-73

June 12, 2014

Digest:         A judge may write an unsolicited letter to a federal executive branch employee expressing appreciation for the employee’s professionalism, based on the judge’s personal knowledge, and may use his/her judicial stationery marked “personal and unofficial.”

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 14-33; 11-82; 10-07; 09-68; 07-77; 06-156; 01-46 (Vol. XX); 99-54 (Vol. XVII); 95-53 (Vol. XIII); 87-13 (Vol. I); Joint Opinion 09-240/09-241/10-06.

Opinion:

         A judge who is pleased with the professionalism displayed by a high-ranking federal executive branch employee in discharging his/her official duties within New York State asks whether he/she may write an unsolicited letter to the official “to commend [the official] for the work [the official] is doing and [the official’s] professionalism.” The judge would specifically like to commend the official “for the respectful way that [he/she] treats the public and clergy,” and asks if he/she may use judicial stationery marked “personal and unofficial” for the letter.

         A judge must avoid impropriety and its appearance in all the judge’s activities (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]).

         The Committee has previously advised that a judge may, subject to certain limitations, write letters thanking jurors for their service or their willingness to serve (see Opinions 07-77; 95-53 [Vol. XIII]); thanking lawyers for accepting pro bono cases through a court-sponsored pro-bono program (see Opinion 09-68); and expressing appreciation to the executive branch for a recent upgrade of court facilities (see Opinion 11-82). In these instances, of course, the judge’s gratitude was related to matters that directly involved the administration of justice which were well within the scope of the judge’s official duties.

         The Committee has also previously considered questions from judges who had already written appreciation letters to various entities concerning matters that did not directly involve the administration of justice and were not within the scope of the judge’s official duties (see Opinions 01-46 [Vol. XX]; 99-54 [Vol. XVII]; 87-13 [Vol. I]). In each case, however, the Committee did not comment on the permissibility of the judge’s past conduct in writing and sending the letter, but instead focused on whether the inquiring judge could consent to the recipient’s particular proposed use of a letter the judge had already written and sent (see Opinions 01-46 [Vol. XX] [judge may not permit an agency which ran the judge’s media campaign to use quotes from the judge’s thank-you letter in its own advertising, even if the judge is identified solely as a judicial “candidate”]; 99-54 [Vol. XVII] [judge may permit a nursing home to post the judge’s thank-you letter on the institution’s internal bulletin board to boost employee morale]; 87-13 [Vol. I] [judge may not authorize a private research institution to use the judge’s letter complimenting the institution’s publication to advertise the publication]).

         The present inquiry appears to present a question of first impression for the Committee. Under the circumstances presented, the Committee believes the proposed unsolicited letter expressing appreciation to a federal executive branch employee for having displayed professionalism in his/her work and treated individuals respectfully is likely to promote civil relations and discourse between branches of government, and may also help provide positive reinforcement and encouragement for a job well done (cf. Joint Opinion 09-240/09-241/10-06 [permitting attendance at swearing-in ceremony and reception as a “civic event that calls for collegiality” among public office-holders and as an occasion that “tends to promote civil relations and discourse between” branches of government]). Moreover, the judge’s proposed letter is somewhat analogous to a letter of reference insofar as it is based on the judge’s personal knowledge and observations of the federal executive branch employee’s performance of official duties (cf. Opinions 10-07; 06-156 [discussing letters of reference]).

         Accordingly, absent any specific factors that would create an appearance of impropriety,¹ the Committee believes the inquiring judge may write the proposed letter based on his/her personal knowledge of the employee’s actions and may use judicial stationery for this purpose, provided the stationery is marked “personal and unofficial.”

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     ¹ Different considerations could apply, for example, if the inquiring judge’s letter was offered to support the individual’s application to a government agency (see Opinion 14-33).