Writing Letter of Recommendation to a Judge

January 15, 1999

CJE Opinion No. 99-5

You have requested an opinion concerning the propriety of writing a letter of recommendation to a judge in another state on behalf of a prospective adoptive parent.

Canon 2(B) provides, in part, that a judge "should not lend the prestige of his office to advance the private interests of others . . .." It also specifies that a judge "should not testify voluntarily as a character witness."

We concur with advisory opinions that regard letters of recommendation in court matters as the equivalent of voluntary testimony as a character witness; and therefore conclude that such a letter is proscribed by the provisions of Canon 2(B). (See Nebraska Advisory Opinion 89-2, where the letter to a sentencing judge was regarded as voluntary testimony as a character witness; and Illinois Advisory Opinion 95-12, where the proscription on testifying also "prohibit[s] the voluntary submission of written character references.") The Florida Supreme Court, in rejecting an argument that a judge is not "testifying" by writing a letter because a letter is not under oath, held that the prohibition on testifying as a character witness was sufficiently broad to encompass a written statement voluntarily submitted with the knowledge and understanding that it may be used in an adjudicatory proceeding. Inquiry Concerning Fogan, 646 So. 2d. 191, 194 (Fla. 1994).

Canon 2(B) would not, however, prohibit a judge from responding to a request for information made by an out of state agency comparable to the Massachusetts Department of Social Services. The information provided to the Department of Social Services concerning the suitability of prospective adoptive parents is routinely recorded and, in contested matters, is subject to review by all parties as well as the court, thereby removing ex parte communication as an issue. See G.L. c. 210 § 5A. If the Department of Social Services contacted you concerning the suitability of a prospective adoptive parent, there would be no prohibition on sharing your personal knowledge and observations. Such information would be conveyed in response to an official request from an agency acting pursuant to laws enacted to protect the interests of children. We see no reason why a similar request from a comparable department of another state would warrant a different result.

Moreover, there is no prohibition in the Canons against providing character testimony in response to a summons to testify either at a trial or by deposition.