Opinion 24-98

May 9, 2024

Digest:  (1) Although a judge may not voluntarily provide a character reference at the request of the applicant for a pistol permit, a judge with relevant personal knowledge, who is not a firearm licensing officer, may permit the applicant to list the judge as a character reference in connection with his/her pistol permit application.  Should the firearm licensing officer then choose to contact the judge for information about the applicant’s character, the judge may respond to the licensing officer’s questions based on personal knowledge. 
(2) A judge who is a firearm licensing officer may not authorize an applicant for a pistol permit to list him/her as a reference on their pistol permit application.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 22-178; 21-177; 20-181; 19-95; 14-33; 12-84/12-95; 11-16; 10-17; 10-07; 08-211; 05-60; 02-26; 95-33; 90-156; 89-73.

Opinion:

          The inquiring town justice asks if he/she may permit a town board member, with whom the judge has had a longstanding personal and professional relationship, to list the judge as a character reference in connection with the town board member’s application for a pistol permit.

          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 the private interests of the judge or others (see 22 NYCRR 100.2[C]) and “shall not testify voluntarily as a character witness” (id.).

          In general, a judge with relevant personal knowledge may provide “a reference for a job, law school, or college applicant” (Opinion 10-07), even when (for example) an attorney who regularly appears before the judge applies for employment as a federal prosecutor (see Opinion 21-177). 

          But we have consistently distinguished between “a private situation in which a judge may write a letter of reference for a job applicant” and a situation where “a judge is asked to write a letter supporting an individual’s application to a government agency” (Opinion 22-178).  In the latter situation, a judge may not put him/herself forward by engaging in an affirmative act such as writing a letter in support of the applicant, as this would impermissibly lend judicial prestige to advance private interests (see Opinions 14-33 [no letter for friend seeking permission to enter a foreign country]; 10-17 [no letter supporting friend’s application for a pistol permit]; 02-26 [no letter encouraging a non-judicial authority to appoint an attorney as an administrative law judge]; 95-33 [no letter concerning long-time client’s pistol permit application]; 90-26 [no letter at the request of an attorney under investigation]; 89-73 [no letter on behalf of a lawyer awaiting sentence on a felony conviction or a disbarred lawyer seeking reconsideration by the Appellate Division]; see also Opinion 20-181 [reporting required on receipt of another judge’s impermissible character reference and letter in support of a pistol permit application]).

          We have adopted a different approach when it comes to allowing the applicant to list the judge as a reference.  This is not an affirmative act by the judge, such as writing a letter, that can be seen as improper intervention in the decision-making of another public official or agency.  It is essentially passive.  The authority overseeing the matter has the option, in their sole discretion, to contact the judge for further information about the applicant.  Thus, we have often said it is permissible for a judge’s name to be listed as a reference in circumstances where the judge cannot write a letter, and thereafter the judge may respond to any official inquiry, if one is made, based on the judge’s personal knowledge of the applicant (see e.g. Opinions 19-95 [inmate’s clemency application]; 11-16 [court employee disciplinary proceeding]; 08-211 [adoption application]; 05-60 [foster parent application]; cf. Opinion 12-84/12-95 [a judicial candidate may list the name of a sitting judge as a reference for a political party’s screening panel but must not ask a sitting judge to write the panel directly on the candidate’s behalf]).

          The one special wrinkle here, in the context of a pistol permit application, is that some judges – albeit not the inquiring town justice – are themselves firearm licensing officers.  In our view, to avoid even the appearance of impropriety, a judge who is a firearm licensing officer should not agree to be listed as a reference on a pistol permit application. 

          Here, the inquiring town justice, who is not a firearm licensing officer, indicates that he/she has known the applicant seeking a pistol permit, personally and professionally, for many years.  While the judge may not provide a character reference at the request of the applicant, the judge may permit the applicant to list the judge’s name as a reference on the pistol permit application.  Thereafter, should the firearm licensing officer choose to contact the judge, it is permissible for the judge to respond to any questions the licensing officer may have about the applicant based upon the judge’s personal knowledge.