Opinion 15-74

April 23, 2015

Digest:         A judge, who has been properly subpoenaed, may testify as a character witness based on his/her personal knowledge of a convicted defendant, but must not request leniency in sentencing. The proper format of the judge’s response to a subpoena is a legal or procedural question which the Committee cannot address.

Rules:          Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 101.1; Opinions 10-07; 08-211; 08-158; 97-92; 96-127; 89-73.

Opinion:

         The inquiring judge, who has personal knowledge of a convicted defendant awaiting sentencing in federal court, asks whether he/she may, in response to a subpoena, submit “an affidavit in letter form to the [sentencing judge] requesting leniency” for the defendant.¹

         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]). A judge must respect and comply with the law (see id.) and must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]). Although a judge also must not testify voluntarily as a character witness (see id.), a judge who testifies pursuant to subpoena “is required by law to do so” (Opinion 08-158). The judge in the present inquiry, therefore, may testify pursuant to subpoena.

         In the Committee’s view, the inquiring judge may respond to the contemplated subpoena with factual information based on the judge’s personal knowledge of the defendant, because a judge must respect and comply with the law (see generally 22 NYCRR 100.2[A]; Opinion 08-158 [noting that a subpoenaed judge has the same rights, duties and obligations as any other witness]). Thus, the judge may, if requested by subpoena, state “the judge’s opinion as to the character of the” defendant (Opinion 89-73; see also e.g. Opinion 08-211 [judge may respond to adoption agency’s inquiry about an attorney’s fitness to adopt “based on [the judge’s] personal knowledge of the attorney’s character”]).

         The judge must not, however, request leniency for the defendant. The risk is that a judge’s “plea for leniency ... could be seen as using the prestige of [judicial] office to advance the private interests of others” (Opinion 96-127; 22 NYCRR 100.2; 100.2[C]). Indeed, even when a judge provides a permissible letter of reference for a job, law school, or college applicant, the Committee has said a judge “should not recommend that the recipient hire, accept or appoint the applicant” (Opinion 10-07). Here, too, by limiting his/her subpoena response to facts based on his/her own personal knowledge and observations, a judge helps guard against any possible public perception the judge is using the prestige of judicial office to advance private interests (see generally 22 NYCRR 100.2; 100.2[C]). Thus, rather than making any direct plea for leniency for the defendant, the inquiring judge should simply state his/her relevant personal knowledge and observations as appropriate in response to the subpoena, and allow the sentencing judge to draw his/her own inferences.²

         Finally, the Committee cannot comment on whether this judge may respond to a subpoena with “an affidavit in letter form” or other written statement, as the proper format of his/her response to a subpoena is primarily a legal or procedural question to be resolved by the parties and/or the tribunal (see Judiciary Law §212[2][l]; 22 NYCRR 101.1; cf. Opinion 08-158).

______________________

       ¹ The inquirer and the defendant had previously collaborated on certain projects for a local community, in the inquirer’s former non-judicial capacity.

        ² Opinion 97-92 is not to the contrary. In Opinion 97-92, the Division of Parole had specifically asked the inquiring judge, who had previously represented the defendant, for “a statement and/or recommendation concerning the [judge’s] former client.” Under those circumstances, the Committee advised that the judge may respond to the Division of Parole’s request, “based upon the judge’s knowledge of the defendant” (id.). There is no indication in the present inquiry that the sentencing judge has requested the inquirer’s recommendations on sentencing, or that the subpoena will command the inquirer to make a plea for leniency, rather than eliciting factual statements.