Opinion 24-113

June 20, 2024

Digest:  A judge who makes direct and indirect referrals to mental health and substance abuse services may write a letter in support of a local counseling agency’s application for approval as a certified behavioral health clinic.  The judge should not simply sign a form letter, as the judge’s letter should reflect the judge’s observations and judgment.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(C)(3)(b)(iii); Opinions 20-144; 16-95/16-107; 14-180; 01-100/01-101.

Opinion:

          A judge who makes direct and indirect referrals to mental health and substance abuse services asks if it is ethically permissible to write a letter in support of a local counseling agency’s application for approval as a certified behavioral health clinic.  The judge has personal experience with the counseling agency in his/her judicial capacity and believes that approval of the agency (or others) to provide such enhanced services in the region will help improve the legal system and the administration of justice.  The judge also notes that the agency furnished a template for a letter of support.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]), and must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).  Nonetheless, a judge may make recommendations to public and private fund granting organizations on “projects and programs concerning the law, the legal system or the administration of justice” (22 NYCRR 100.4[C][3][b][iii]).

          In Opinion 14-180, we advised that “[a] judge who regularly refers litigants to a residential substance abuse treatment facility may write a letter supporting the facility’s application to become a participating service provider for insurance purposes.”  We noted that although the inquiry did not involve a traditional grant application, the treatment facility to which the judge regularly referred litigants was applying for a particular status which would increase the facility’s eligibility for insurance reimbursement, and the “increased insurance coverage will also help make court-ordered services or treatment, intended to prevent repeat offenses, more affordable for litigants in the judge’s court” (id.).  Thus, we concluded that since the “effort involves the law, legal system and administration of justice, the judge may write the requested letter” (id.).

          Here, the inquiring judge makes direct and indirect referrals to a local counseling agency for mental health and substance abuse services and believes enhanced services in the region will help improve the legal system and the administration of justice.  Accordingly, the inquiring judge may write a letter in support of the agency’s application for approval as a certified behavioral health clinic, consistent with generally applicable limitations on judicial speech and conduct (see Opinion 14-180). 

The judge should not simply sign a form letter but should write his/her own (see Opinion 16-95/16-107), so that it can reflect the judge’s “[f]irst-hand knowledge and personal judgment, . . . the basis and details of which are a matter of individual observation and experience that should be expressed individually” (Opinion 01-100/01-101; cf. Opinion 20-144 [judge may not simply lend his/her name to support a grant application “without addressing any necessary objective facts, perspective, qualifications and/or information concerning the judge’s personal knowledge and experience with the program”]).