December 12, 2019
Digest: Where a judge has relevant personal knowledge of a job applicant, a familial relationship between them is no bar to providing an employment reference. Thus, a judge may write an employment reference letter for a relative just as he/she would for other applicants unrelated to the judge.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 10-07; 88-53; 88-10.
A judge’s niece/nephew, a law school student, is applying for post-graduation employment in a government law office that does not appear before the judge. The judge asks if he/she may provide a character reference to the prospective employer.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote 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 any private interests and must not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).
Generally, a judge may write a reference letter for a law school or job applicant if it reflects the judge’s appraisal of the applicant’s abilities based on personal knowledge (see Opinion 88-10). Where, as here, the potential employer does not regularly appear before the judge, the letter should be addressed to the employer (see Opinion 10-07 [noting “the judge cannot control to whom or under what circumstances the applicant will use” a more generic letter]).1 As we observed in Opinion 10-07 (citations omitted):
a judge who provides a reference for a job, law school, or college applicant, or an applicant for an appointive position, should not recommend that the recipient hire, accept or appoint the applicant. Rather, the judge should limit his/her comments to his/her personal knowledge of the applicant’s professional performance; to the judge’s observations of the applicant’s qualities and abilities...relevant to the position the applicant seeks; or to the judge’s opinion of a person’s character based on the judge’s observations; or to the applicant’s work history if the judge has worked with the person or otherwise has reliable personal knowledge of the person’s expertise.
Here, assuming the judge has relevant personal knowledge of the job applicant, we believe their familial relationship is no bar to providing an employment reference. As with other job applicants, the judge may also permit his/her relative to list the judge’s name as a reference if he/she would prefer to respond to an inquiry from the prospective employer.
1 Conversely, where a potential employer regularly appears in the judge’s court, a letter from the judge to that employer could result in an appearance of impropriety and might raise questions about the judge’s ability to be impartial (see Opinion 88-53). In such case, we recommend the judge either (a) authorize the job applicant to provide the judge’s name to the potential employer, who then may decide whether or not to contact the judge directly for a reference or (b) provide the job applicant with a letter addressed to “To Whom It May Concern” (see Opinion 10-07).