Please Note: This opinion is modified by Opinion 24-109, which states: “While a judge should be careful to avoid even the appearance of coercion, an otherwise permissible letter focused on the judge’s personal knowledge and observations of the applicant is not rendered improper by inclusion of a recommendation that the recipient hire, accept or appoint the applicant.”

Digest:         A judge in a large urban court may write a letter of reference for a sheriff’s deputy supervisor seeking to be promoted, based on the judge’s personal knowledge of the deputy, where the deputy supervises others who provide court security and is thus unlikely to appear before the judge.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 16-38; 10-07; 01-37.

Opinion:

A supervising judge in a large urban court asks if it is ethically permissible to provide a letter of reference at the request of a sheriff’s deputy supervisor who is seeking promotion. The inquiring judge addresses court security issues with supervisory staff of the sheriff’s office and has thus known the deputy supervisor for approximately two decades in connection with court security functions. There is no indication in the inquiry that the deputy supervisor has appeared, or is likely to appear, as a witness before the judge. The judge has no outside or interpersonal relationship with the deputy supervisor.

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 lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).

Although a judge may not write “letters of recommendation on behalf of police officers seeking promotions where it appears likely that the officers will be witnesses, or otherwise involved, in cases before the judge” (Opinion 01-37), we have also said that a judge presiding in a large urban criminal court may write a reference for a police officer seeking to be promoted where the judge’s personal knowledge of the officer predates the judge’s assumption of judicial office and the judge can easily recuse when the officer appears as a witness (see Opinion 16-38). Moreover, in “large urban criminal courts where many officers from multiple precincts are witnesses,” we did not see the proposed letter of reference “as ‘coercive’ or ‘giv[ing] rise to a perception of judicial partiality’” (id. [citation omitted]).

Here, the judge presides in a large urban court and knows the sheriff’s deputy supervisor from many years of interactions concerning court security functions, and there is no indication in the inquiry that the deputy supervisor has appeared before the judge as a witness or is likely to do so. Thus, consistent with Opinion 16-38, we conclude that the judge may provide a letter of reference for the sheriff’s deputy supervisor, based on the judge’s personal knowledge of the deputy supervisor in connection with court security functions. Although it is unlikely that the deputy would appear in matters before the judge, should that nonetheless occur, the judge must recuse (see Opinion 16-38).

Finally, as a reminder, when writing permissible reference letters, a judge:

should not recommend that the recipient hire, accept or appoint the applicant. Rather, the judge should limit his/her comments to his/her personal knowledge of the applicant’s professional performance; to the judge’s observations of the applicant’s qualities and abilities that are relevant to the position the applicant seeks; or to the judge's opinion of a person's character based on the judge’s observations; or to the applicant’s work history if the judge has worked with the person or otherwise has reliable personal knowledge of the person’s expertise (Opinion 10-07 [citations omitted]).