Writing Letter Supporting Reinstatement to the Bar

June 20, 2000

CJE Opinion No. 2000-5

You have inquired about the propriety of granting the request of a lawyer who has asked you to write a letter in support of his petition for reinstatement to the bar. The lawyer was a law school classmate whom you describe as a long-time acquaintance. You also state that you know from personal observation that since the lawyer was disciplined, his personal life has stabilized and he has been working hard to earn a living doing title searches but not practicing law. You would like to write a letter on his behalf, but you have some concerns about the applicability of Canon 2 to this situation.

Canon 2(B) provides that "A judge . . . should not lend the prestige of his office to advance the private interests of others. . . . He should not testify voluntarily as a character witness." While writing a letter would not be under oath and would not technically be "testifying," it seems to the Committee that the policy behind Canon 2(B) as stated in the first quoted sentence applies to this inquiry. The letter you have been asked to write relates to a formal judicial proceeding, and thus presents different considerations than the types of letters of recommendation discussed in CJE Opinion No. 94-1. The Rule's prohibition against voluntary testimony as a character witness is a particular example of the more general proposition that a judge should not lend the prestige of his office to advance the private interests of others. We see no difference between providing information in a judicial proceeding under oath and providing it in unsworn letter form. Several jurisdictions have construed Canon 2(B) to forbid judges from writing letters on behalf of lawyers in disciplinary proceedings, including reinstatement proceedings. See Florida Advisory Opinion 88-19; Missouri Advisory Opinion 137 (1988); and New York Advisory Opinion 89-73.

         Only the Washington Ethics Advisory Committee has taken the opposite view. It stated its reason for so doing in the following language: "The Washington State Bar Association operates as an arm of the Supreme Court in regulating the practice of law; therefore the communication is appropriate. It is part of a judge's duty to improve the legal system by recommending to the bar association those persons fit to practice law and is not the type of character testimony contemplated by CJC Canon 2(B)." Amended Advisory Opinion 88-5. We do not agree with that interpretation of the Rule. A petition for reinstatement to the bar is not like an application for initial admission. It is a judicial proceeding, and the provisions of Canon 2(B) apply across the board without exception. If an exception is to be made, it should be made by amending the Rule, as both California and Alabama appear to have done. See Cynthia Gray, "Recommendations by Judges" 12 (American Judicature Society 1996). Of course, if the judge is subpoenaed or if a request for information is made by Bar Counsel or the Board of Bar Overseers, then the judge may, indeed shall, respond. Cf. Rule 8.1 of the Massachusetts Rules of Professional Conduct.