Opinion 24-109

June 20, 2024

Digest: An appellate judge, who is also an adjunct law professor, may write letters of recommendation based on personal knowledge for current or former law students seeking judicial clerkships in other courts.  The letter should be addressed directly to the hiring judge, unless that judge presides in a lower court subject to the appellate judge’s jurisdiction.  If the judge uses judicial stationery, he/she must clearly mark it “Personal and Unofficial.”

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.3(A); 100.3(C)(3); 100.4(A)(1)-(3); Opinions 21-177; 10-07; 90-46; 88-53.

Opinion:     

          The inquiring judge presides in a court with appellate jurisdiction.  As the judge is also an adjunct law school faculty member, he/she asks if it is ethically permissible to write letters of recommendation for current and former law students seeking employment as law clerks to state or federal judges.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge’s judicial duties “take precedence over all the judge’s other activities” (22 NYCRR 100.3[A]) and thus his/her extra-judicial activities are subject to limitations (see generally 22 NYCRR 100.4[A][1]-[3]).  For example, a judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]).  A judge also must “refrain from recommending” a fourth-degree relative by blood or marriage “for appointment or employment to another judge serving in the same court” (22 NYCRR 100.3[C][3]).

          In general, a judge with relevant personal knowledge of a job applicant may write a reference letter to the prospective employer at the applicant’s request (see e.g. Opinions 21-177 [judge may write reference letter supporting assistant district attorney’s application for employment as federal prosecutor]; 90-46 [Surrogate Court’s judge may write a letter to a City Court judge “on behalf of a court employee who is applying for a position as a clerk in the other judge’s court”]).  Such letters ordinarily focus on the judge’s “personal knowledge of the applicant’s professional performance”; “observations of the applicant’s qualities and abilities . . . relevant to the position”; or “the judge’s opinion of a person’s character based on the judge’s observations” (Opinion 10-07).  They may also address “the applicant’s work history if the judge has worked with the person or otherwise has reliable personal knowledge of the person’s expertise” (id.).

          We see no reason to distinguish a law student seeking a judicial clerkship from others seeking private employment as law firm associates or public employment as assistant district attorneys, assistant public defenders, or the like.  Nor do we see a reason to preclude appellate judges from writing reference letters on personal knowledge for job applicants just as trial-level judges do.  Accordingly, the inquiring judge may write a letter of reference for current and former students, where the judge knows the requesting student in his/her capacity as an adjunct professor and the reference speaks to that personal knowledge and the judge’s observations of the qualities and abilities of the student.  While the judge may not write a reference letter for a judicial clerkship to “another judge serving in the same court” (22 NYCRR 100.3[C][3]), the rules do not bar a judge from writing such letters for clerkships in other courts.

          An employment reference letter should ordinarily be addressed directly to the prospective employer, “because the judge cannot control to whom or under what circumstances the applicant will use [the] letter” (Opinion 10-07).  We nonetheless recognized one exception to this principle, where an attorney requesting a reference letter is applying to a potential employer that “regularly appears in the judge’s court” (id., citing Opinion 88-53).  In that special circumstance, we said a letter directed to that employer “might appear to compromise the judge’s independence or impartiality and may seem coercive” (Opinion 88-53 [noting the prospective employer “constantly appears before” the inquiring judge]).  It would therefore be appropriate to instead “provide the job applicant with a letter addressed to ‘To Whom It May Concern’” (Opinion 10-07, citing Opinion 88-53).

          In our view, a similar principle applies here.  A reference letter for a law student seeking a judicial clerkship should ordinarily be addressed directly to the hiring judge.  This applies even if the hiring judge presides in another court within the Unified Court System, unless that court is subject to the inquiring judge’s appellate jurisdiction.  If so, the appellate judge should either authorize the law student to provide his/her name as a reference to the lower-court judge or provide the law student a reference letter addressed “To Whom It May Concern” (see Opinions 10-07; 88-53).

          Finally, we have sometimes attempted to distinguish between a letter of reference and a letter of recommendation for an applicant seeking employment or admission to an educational institution.  In particular, we have said a judge “should not recommend that the recipient hire, accept or appoint the applicant” when writing a reference letter (Opinion 10-07).  On further consideration, we think this advice is overcautious and risks elevating form over substance.  While a judge should be careful to avoid even the appearance of coercion, an otherwise permissible letter focused on the judge’s personal knowledge and observations of the applicant is not rendered improper by inclusion of a recommendation that the recipient hire, accept or appoint the applicant.  Characterization of a document as a “letter of recommendation” or use of the phrase “I recommend” cannot be determinative.  We hereby modify our prior reference letter opinions to be consistent with this view.

          Accordingly, we conclude the inquiring appellate judge may write letters of recommendation based on personal knowledge for current or former law students seeking judicial clerkships in other courts as discussed herein.  If the judge uses judicial stationery, he/she must clearly mark it “Personal and Unofficial.”