Opinion 15-101

June 11, 2015

Digest:         Absent an administrative order or rule change allowing judges who preside in treatment-oriented problem solving courts to serve as references for defendants/participants who recently appeared before them, a judge may not be a reference for someone who recently appeared before the judge as a defendant/participant in such a court.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A)-(C); 101.1; Opinion 14-151.

Opinion:

         A judge requests reconsideration of Opinion 14-151, where the Committee advised that a “judge may not serve as a reference for an individual who recently appeared before the judge as a defendant/participant in a treatment-oriented problem-solving court.” The inquiring judge argues that “a properly worded letter from a Treatment Court Judge about a graduate is akin to all other letters of reference that judges are permitted to write for those with whom we have personal knowledge, fosters a favorable public perception of the judiciary, and violates no ethical rules.” The judge urges that, once a treatment court participant’s case is concluded, the judge ought to be able to write a reference because:

The judge has reliable personal knowledge about that person based on months and possibly years of regular court appearances, reviews of attendance records, results of hundreds of drug tests, reports from counselors, teachers, and employers, and discussions in court. In some cases, the judge has also read essays written by the participant, had conversations with family members, and heard the participant speak at recovery related conferences.

The inquiring judge proposes to write letters for selected drug court “graduates” by setting forth his/her knowledge of the individual, including the fact of the individual’s arrest and participation in the judge’s court-mandated program. The judge emphasizes that all statements would be “based upon [the judge’s] own personal experience with the graduate,” with “no recommendation about hiring him/her.” Thus, the letter would contain entirely “objective observations of the defendant's accomplishments during his/her Drug Court involvement and after graduation, and [would leave] the recipient to make his/her own conclusions as to the defendant’s” suitability for a particular position.

         Most critically, the judge urges the Committee to consider that the “primary goal of Treatment Court is to rehabilitate drug-addicted criminal defendants into drug-free, employed, and law-abiding members of society,” helping break the “repeating cycle of drug addiction, crime, and incarceration through referrals to drug treatment programs and close judicial monitoring of treatment.” For this reason, the inquiring judge states:

Defendants appear before a judge frequently and over an extended period of time in order to successfully complete their court mandates. Graduates are encouraged to return to court to serve as mentors and speakers. ... For many of our graduates, this rehabilitation would not be possible without the continued encouragement of the judge. ... The judge has the unique perspective from which to explain to individuals with no understanding of addiction that those criminal records are consistent with past addiction, and to detail the efforts made to overcome this addiction. For graduates, who are already faced with many barriers to lawful employment, a letter from the Presiding Judge explaining their successful completion of Drug Court could make all of the difference.

In sum, the judge is concerned that Opinion 14-151 undermines the rehabilitative purposes of the Treatment Court, and thus asks the Committee to “reconsider this opinion and clarify under what circumstances a Treatment Court judge can write an objective letter outlining a defendant’s or graduate’s accomplishments in order to help achieve this goal.”

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must not allow family, political or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]) and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.2[C]).

         The Committee has carefully reviewed the materials and arguments set forth in the present inquiry, and is sympathetic to the inquiring judge’s policy concerns. However, these policy concerns must be addressed by the appropriate administrative authority.¹ Absent an administrative order or rule change expressly authorizing judges who preside in the treatment courts to write letters on behalf of defendants who have recently appeared before them, the Committee adheres to its conclusion in Opinion 14-151 (citations omitted):

writing such a letter would create an appearance of impropriety because the judge’s relevant knowledge of the individual’s suitability [for the position] is inextricably intertwined with the individual’s recent involvement as a defendant and problem-solving court participant before the judge [citations omitted]. While the procedure followed in treatment-oriented problem solving courts is likely to promote closer, more personal relationships between the presiding judges and the defendants, the judges still must uphold the independence of the judiciary and must not lend the prestige of judicial office to advance the private interests of others [citations omitted].

The Committee simply cannot say, as a matter of judicial ethics, that judges who preside in the treatment courts must be held to a different standard of impartiality and independence than other judges with respect to the litigants who appear before them. That policy decision, if it is to be made, must be made at the highest levels of court administration.

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         ¹ The Committee notes that the policy questions at issue could potentially involve, among many other things: considering social science data and studies about factors that lead to successful rehabilitation; assessing the likelihood that a judge who writes a letter for a graduate may, in fact, compromise the judge’s impartiality if the individual comes before the judge in other proceedings; reviewing data about recidivism rates; considering the viability of alternative methods for the treatment court team or court administration to support a graduate’s efforts to find employment; considering whether and how to choose which graduates will receive such support, if fewer than all; whether providing such references should be part of a judge’s judicial duties; and, of course, weighing all of the above in light of the rehabilitative policy of the treatment-oriented courts. None of these is within the Committee’s mandate (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).