Opinion 23-234

February 1, 2024

Digest:  A judicial hearing officer may not voluntarily serve as a character reference or submit a letter attesting to the character of a judge undergoing a pending or impending disciplinary proceeding. 

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.6(A); Opinions 16-41; 10-188; 05-34; 90-156; 89-73; 88-63.

Opinion:

          The inquiring judicial hearing officer (JHO) asks if it is ethically permissible to serve as a character reference for a sitting judge who is the subject of a pending or impending disciplinary proceeding.  The JHO knows the judge professionally. 

          As quasi-judicial officials, JHOs must comply with the Rules Governing Judicial Conduct in performing their judicial duties and otherwise use the Rules as a guide to their other conduct “so far as practical and appropriate” (22 NYCRR 100.6[A]).  Thus, a JHO 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]).  In addition, a JHO must not lend the prestige of judicial office to advance any private interests nor “testify voluntarily as a character witness” (22 NYCRR 100.2[C]).

          A judge may not provide a character reference letter or testimony on behalf of the subject of a disciplinary or criminal proceeding on the judge’s own initiative, or at the request of the respondent or defendant, or at the request of their counsel (see e.g., Opinions 16-41; 10-188; 05-34; 90-156; 89-73; 88-63).  Rather, a judge may only do so in response to a subpoena or at the direct request of the disciplinary authority or other appropriate governmental agency (see id.). 

          Given that the judge may respond to a direct inquiry from a disciplinary authority about a respondent attorney, we have further advised that a judge “may authorize the attorney to tell the disciplinary committee that it may contact the judge concerning the matter” (Opinion 16-41).  Should the judge be subpoenaed or contacted directly by the disciplinary committee, we cautioned the judge to refrain from offering an opinion regarding an appropriate sanction “unless specifically directed to by the disciplinary committee or by subpoena” (id.)

          Here, too, the inquiring JHO may not voluntarily appear as a character reference or offer a letter in support of the respondent judge.  Accordingly, the JHO must not submit a letter on the facts described.  The JHO may, of course, appear in response to a subpoena.  The JHO may also authorize the subject judge to advise the disciplinary authority it may contact the inquirer regarding the matter; should the disciplinary authority choose to do so, the JHO may respond to the disciplinary authority’s request.