Opinion 89-73

May 25, 1989

Topic:          Propriety of a judge writing a character reference letter (1) on behalf of a lawyer awaiting sentence on a felony conviction, or (2) on behalf of a disbarred lawyer seeking reconsideration by the Appellate Division.

Digest:         A judge, on the judge’s own initiative or at the request of a lawyer awaiting sentencing on a felony conviction, or a lawyer seeking reconsideration of disbarment, or at the request of counsel to such lawyers, may not write a character reference letter, but may do so in response to an official inquiry.

Rules:          22 NYCRR 100.2(c); Code of Judicial Conduct, Canon 2B.

Opinion:

         A judge asks whether it is permissible to write letters giving character references on behalf of two lawyers, one awaiting sentence on a felony conviction, and the other seeking reconsideration of disbarment by the Appellate Division.

         Section 100.2(c) of the Rules of Judicial Conduct of the Chief Administrator of the Courts (22 NYCRR 100.2(c), provides:

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.

         Canon 2B of the Code of Judicial Conduct contains a nearly identical provision.

         In the Committee’s Opinion, these provisions would be violated were a judge, on the judge’s own initiative or at the request of the lawyers who are facing, respectively, sentencing or continued disbarment, or at the request of their counsel, to provide character references, written or oral, on behalf of these lawyers, to officials involved in the proceedings against these lawyers. To do so is tantamount to voluntarily testifying as a character witness. However, just as a judge may honor a subpoena to testify, a judge may respond to an official request from a court, district attorney, probation or parole department, presiding hearing officer, or disciplinary committee or its counsel, as appropriate, for the judge’s opinion as to the character of the lawyers. An official request received from such an appropriate agency, court or official for the judge’s opinion may be honored by the judge in the same way the judge would honor a subpoena. See also Opinion 89-04 of the Committee.