Opinion  CJE Opinion No. 94-1

Date: 11/18/1994
Organization: Massachusetts Supreme Judicial Court

The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.

Table of Contents

Writing Letters of Recommendation,and Making Recommendations on Behalf of Judicial Candidates

Your letter requested the Committee's advice with respect to the propriety of judges writing letters of recommendation at the request of former associates, students, and friends seeking professional, school, or organization positions. You have also been asked to write letters on behalf of judicial candidates to the Judicial Nominating Commission and the Executive Council. You inquire whether writing such letters violates the letter or spirit of Canon 2(B).

Canon 2(B) provides:

"A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness."

Your inquiry covers a wide variety of requests and entities to which a recommendation would be made. It is impossible to craft a specific response that would cover every possible situation. We can only point out the general considerations that judges receiving requests should consider in deciding whether or how to respond.

The pertinent portion of Canon 2(B) forbids judges from lending the prestige of their offices to advance the private interests of others. That Canon could be read to forbid judges from ever recommending anybody for anything. Once appointed, a person's status as a judge becomes part of his or her identity. Everything judges do, whether official or non-official, becomes the act of a judge. We do not believe that the Canon should be read so stringently. Judges should not be precluded from doing things legitimately done by others in society unless there is an identifiable basis in the language of the Code of Judicial Conduct to do so. Letters of recommendation are routinely asked of people who have attained some level of competence in their field or some level of acquaintance with the applicant. Writing such a letter is often an imposition that many believe that they have a professional or social obligation to perform. Indeed, sometimes judges have special knowledge that makes them uniquely qualified to assess the suitability of an applicant for a position. We therefore advise that Canon 2(B) is not violated every time a judge recommends a person for a position.

Our view is that absent special circumstances, permissibility in general turns on factual reporting of observed professional skills or personal characteristics and a context in which the communication does not suggest pressure on the employer or organization to accept the judge's recommendation. Accordingly, in general, you may write a letter of recommendation if it is based on your own observations of that person. For example, the person may have worked within the judicial system, may have appeared as a lawyer before you on a regular basis, may be someone with whom you had contact in a position you held prior to appointment, or may be someone you know as a neighbor or from some outside activity. These are only general guidelines, however, because we can imagine additional facts that might bring such situations within the prohibition of Canon 2(B). Such a situation might be presented if, without having been asked, you were to recommend the child of your closest friend to a lawyer who had many important matters pending before you. More difficult cases might be presented by variations of those facts. In addition, you may not recommend someone whom you personally do not know. (For example, a neighbor asks you to write a letter for his nephew, whom you have never met.) In such a situation, the weight of the recommendation depends on your status as judge because you have no relevant knowledge or information relating to the applicant.

In any event, even where a recommendation is permissible, a judge should not follow up his letter with any activity that smacks of a campaign on behalf of the applicant. Such an effort tends to convey the impression that the hiring of the applicant is of such importance to the judge that the recommendee may -- rightly or wrongly -- be concerned about the consequences of a negative decision.

Should difficult situations present themselves, you may wish to seek further advice from the Committee.

Your second question relates to recommendations on behalf of judicial candidates. The Advisory Committee on Codes of Conduct of the Federal Judicial Conference has written an opinion in which it addressed the issue of recommendation of judicial nominees in its Opinion 59 (April 16, 1979). It provided the following advice:

"The Advisory Committee accepts the premise that, as judicial selection processes become more institutionalized and with wider participation, judges have a responsibility to communicate their recommendations and evaluations to the appointive authorities -- the President and Senators -- and their selection committees or commissions. In other words, the cautions of Canon 2B are entirely consistent with a positive duty of judges to communicate their evaluations based on experience to the end that the public interest in a judiciary of quality and integrity be realized.

"Therefore, not only may a judge properly answer inquiries concerning a particular candidate, but he may also properly respond to requests from appointing authorities and their screening committees for suggested names. He may also submit suggested names if he understands that such are being solicited, even though no specific request has yet been addressed to him. A judge should also respond affirmatively to requests from or on behalf of the appointing authorities to evaluate candidates insofar as the judge's knowledge of the candidates permits.

"The strictures of [Canon] 2B . . . come into play in supplying guidance as to the manner of communicating any recommendation or evaluation. They imply that any opinion be and appear to be directed only to factors relevant to performance of the judicial office, that the judge's views should be objective and informative and avoid pleading for or endorsing the final choice and appointment of the candidate he may be recommending as opposed to all others, and that the judge should not lend his name to any publicity campaign for any candidate."

This Committee subscribes to that advice. It does not deny the public appointing authorities necessary information in the selection process but at the same time it imposes cautions on judges that are appropriate to their own role in government.

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