Opinion  CJE Opinion No. 2004-5

Date: 05/20/2004
Organization: Massachusetts Supreme Judicial Court

After the Committee on Judicial Ethics issued this opinion, the Massachusetts Supreme Judicial Court adopted a revised Code of Judicial Conduct. Because this opinion was rendered under a prior version of the Code, a judge should not rely on it without contacting the Committee on Judicial Ethics.

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Committee on Judicial Ethics

Table of Contents

Writing Letter at Court Employee's Request for Use in Disciplinary Proceeding

You have asked the Committee on Judicial Ethics whether the Code of Judicial Conduct permits you to write a letter to the Chief Justice for Administration and Management (CJAM) opposing the termination for disciplinary reasons of a court employee. The employee has requested the letter from you. (1) According to your request, the employee was found to have used excessive force on a prisoner. The employee has appealed his termination to the CJAM in the third level of a multi-level grievance procedure apparently set out in a union contract. If the matter is not resolved to his or her satisfaction at that level, arbitration may follow. Finally, your request states that the incident that produced the disciplinary proceeding is now also the subject of a "show cause" proceeding, designed to determine whether a criminal complaint should issue. If such a complaint did issue, existing court policy precludes you from presiding over the trial or any pretrial proceedings in the case.

You state that you would not seek in your letter to question any factual findings made during the disciplinary proceeding. Instead, you seek to offer your opinion to the CJAM regarding what you view as a disproportionate penalty for the offense. It is unclear from your request whether your opinion is based on your own personal observations of the employee's work, on your knowledge of his reputation, or on some combination of both. (2)

Section 2 B of the Code of Judicial Conduct, effective on October 1, 2003, is most directly relevant to your request. (3) 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. In CJE Opinion 2000-5, for example, 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. In the committee's view, neither the fact that a court employee is the subject of your proposed letter, nor the fact that the disciplinary proceeding is not pending before a court or administrative agency, changes the result.

The letter you wish 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 fact that arbitration and preliminary criminal proceedings are looming underscores the restraint the Code requires. Section 2 A of the Code requires a judge to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Giving full effect to that requirement requires a judge to "distance himself from pending and impending cases by taking reasonable precautions to avoid extrajudicial contact with them. That duty is at the heart of the Code of Judicial Conduct," and it does not matter that the judge will neither personally try nor personally assign the impending case. In re Bonin, 375 Mass. 680, 706-707 (1978).

The committee's conclusion does not mean that a judge would be precluded from writing the kind of letter you seek to write if a 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.

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 information to a decision maker who requests it, or from testifying if properly summoned to do so.

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(1) You have also asked whether other judges may write such a letter. The committee's rules prohibit it from answering "questions relating to the conduct of persons other than the requesting judge." See Rule 3 of the Rules of the Committee on Judicial Ethics. Consequently, this opinion is addressed solely to the specific and personal issues you have raised in your request.

(2) The basis of your knowledge is important because the letter you propose to write is a particular kind of letter of recommendation. Elsewhere, the committee has opined that, in general, the Code permits judges to write letters of recommendation, but only if the recommendation is based on the judge's personal observations. See comment to Section 2 B; CJE Opinion 94-1. Therefore, even if the provisions of the Code discussed below did not prohibit you from writing the kind of letter on which your inquiry focuses, such a letter would have to be based on your own personal observations.

(3) From your request, the committee assumes that you wish only 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."

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