Opinion 88-63

June 7, 1988

Dear Judge

                   The Advisory Committee on Judicial Ethics, at its meeting of May 9, 1988, considered your inquiry (88-63), dated May 2, 1988, concerning the ethical propriety of your writing a letter to the Probation Department, on behalf of a suspended court employee recently convicted of a crime, at the request of the employee.

                   In an earlier opinion (87-05, copy attached), the Advisory Committee determined that a judge might appear under subpoena as a character witness for a defendant in a pending Federal action in which the judge had no interest. Such appearance, unlike a voluntary appearance, pursuant to a subpoena, does not contravene section 100.2(c) of the Judicial Conduct Rules of the Chief Administrator of the Courts (22 NYCRR 100.2(c), which reads:

(c) No judge shall lend the prestige of his or her office to advance the private interests of others; nor shall any judge convey or permit others to convey the impression that they are in a special position to influence him or her. No judge shall testify voluntarily as a character witness.

                   Under the same rationale that distinguishes voluntary character testimony by a judge from a response by the judge to a lawful subpoena or to a lawful request for information from a public agency, the Committee is of the opinion that you should not voluntarily at the defendants' request send a letter to the Probation Department but that you may respond to an inquiry made to you from the Probation Department concerning this defendant.

                   This Opinion is advisory only and does not bind the Commission on Judicial Conduct or the Office of Court Administration.

Very truly yours,

Samuel J. Silverman

Chair