Writing Unsolicited Letter for Use in Court Employee's Disciplinary Proceeding
May 20 , 2004
CJE Opinion No. 2004-4
You have asked the Committee on Judicial Ethics whether the Code of Judicial Conduct permits you to write an unsolicited letter to the Chief Justice for Administration and Management (CJAM) opposing termination for disciplinary reasons of a court employee with whom you have worked. Your letter implies that a disciplinary proceeding was commenced against the employee following an incident in the court where the employee worked. (1) The proceeding resulted in a conclusion that the employee had engaged in prohibited conduct and that termination was the appropriate penalty. The employee has appealed to the CJAM, and that appeal is pending.
You have provided the committee with a draft of the letter you propose to send to the CJAM. The letter is addressed solely to the CJAM and states clearly that you are not questioning any factual findings made during the disciplinary proceeding. Your letter further states that you believe that the penalty of discharge is disproportionate to the offense and fails to account fairly for the employee's career of exemplary service. Finally, your letter states that your comments regarding the employee's service are based on your own interaction with, and observation of, the employee over a period of several years. In sum, you seek to offer your opinion regarding what you view as a disproportionate penalty on the basis of your own personal observations of the employee's conduct.
Section 2 B of the Code of Judicial Conduct, effective on October 1, 2003, is most directly relevant to your request. (2) That section provides in part that a "judge shall not lend the prestige of judicial office to advance the private interests of . . . others," and that "[a] judge shall not testify voluntarily as a character witness in an adjudicatory proceeding." The comments to that section state, in part, that a "judge must not testify voluntarily as a character witness in an adjudicatory proceeding because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. . . . Adjudicatory proceedings include not only proceedings before courts but also before administrative agencies, including disciplinary bodies." In other words, the prohibition applies "to any investigatory or adjudicative proceeding, whether of an administrative, civil, or criminal nature, where a person's legal rights, duties, privileges, or immunities are ultimately determined." C. Gray, Recommendations by Judges at 11 (American Judicature Society 1996).
Against that backdrop, the committee, like other committees throughout the country, interprets Section 2 B broadly to prohibit writing letters of character reference in connection with adjudicatory proceedings. (3) In CJE Opinion 2000-5, a lawyer had asked a judge to write a letter in support of the lawyer's petition for reinstatement to the bar. The lawyer was the judge's law school classmate and long-time acquaintance. From personal observation, the judge knew that the lawyer's personal life had "stabilized" after discipline was imposed and that the lawyer "ha[d] been working hard to earn a living doing title searches but not practicing law." Adopting the view held by committees and commissions in other States, the committee opined that the Code's prohibition against offering voluntary character testimony precluded the judge from writing a letter in behalf of the lawyer. Likewise, in CJE Opinion 97-2, the committee said that the prohibition on voluntary character testimony prevented a judge from writing "a letter attesting to the character of a defendant in connection with the sentencing phase of a matter in which the defendant ha[d] pleaded guilty in federal court."
If the person in whose behalf you wish to write the letter were not a court employee, the Code's explicit prohibition and the opinions just cited would suggest a negative answer to the question you have asked. Does the fact that a court employee is the subject of your proposed letter, or the fact that the disciplinary proceeding is not before a court or administrative agency, make a difference? You suggest that those facts do make a difference, stating that "[t]he inability of a Judge to discuss [personnel matters] with his or her Chief or with the CJAM would suggest to me that we are limiting a Judge's ability to make [his or her] feelings known on the most basic and important issues that confront us in the day to day workings of our various Courts."
With respect, the committee disagrees. The letter you seek to write does not involve a hiring decision, a promotion decision, a decision regarding deployment of personnel, or any of a host of other decisions in connection with which members of an organization routinely express differing views. Instead, your letter involves what appears to be a formalized disciplinary proceeding with formalized fact finding and a formalized appellate mechanism. It is a proceeding with formalities akin to those found in a judicial proceeding. The proceeding, therefore, does not involve the kind of decision-making process in which those with some knowledge of the participants, of the events at issue, or of mitigating circumstances, are invited to volunteer their views so that a sense of organizational or community feeling can be assessed before a decision is made. Volunteering a character assessment in a formalized disciplinary proceeding through a private letter to the ultimate decision maker inevitably and unavoidably brings to bear the weight of judicial office in a way that the provisions of Section 2 B were designed to avoid.
The committee's conclusion does not mean that a judge would be precluded from writing the kind of letter you seek to write if the decision maker solicited such a letter. Section 2 B only prohibits a judge from a "voluntary" proffer of character testimony. Both the CJAM and other authorities involved in the disciplinary process surely are aware that judges and others may have worked with the employee on a sufficiently regular basis to have formed an opinion of his or her character. Those disciplinary authorities, therefore, are in a position to solicit character testimony if, and to the extent that, such testimony is, in their judgment, relevant and material to the decision they are required to make. The Code would not prohibit you from responding to such a solicitation. See CJE Opinion 99-5. Nor would the Code prohibit you from testifying at an evidentiary hearing if you were summoned or otherwise required to do so. See CJE Opinions 98-06.
To summarize, the committee believes that, absent a solicitation from the CJAM to provide information relative to the character of the employee whose appeal is pending, Section 2 B of the Code of Judicial Conduct prohibits you from writing a letter attesting to the employee's character in connection with the employee's pending appeal from a termination decision. The Code does not, however, prohibit you from furnishing character information to a decision maker who requests it or from testifying if properly summoned to do so.
1. You have not stated in detail the nature of the incident, nor have you described the details of the disciplinary process. The committee infers from your letter, however, that the process is a formalized process characteristic of many labor-management arrangements.
2. From your request, the committee assumes that you wish simply to send a private letter to the CJAM, and that you do not intend to distribute the content or substance of that letter to others. Accordingly, there is no need for the committee to consider the provisions of Section 3 B (9) of the Code which, with certain exceptions, prohibit a judge from publicly commenting "about a pending or impending Massachusetts proceeding in any court."
3. In other contexts, Section 2 B permits a judge to write letters of recommendation, albeit with certain important constraints. See comment to Section 2 B; CJE Opinion 94-1.