Pennsylvania Code › Title 207 - JUDICIAL CONDUCT › Part II - CONDUCT STANDARDS › Chapter 33 - CODE OF JUDICIAL CONDUCT › Subchapter B - FORMAL OPINIONS › Section 21-1 - Reference Letters

Current through Register Vol. 54, No. 28, July 13, 2024
The Ethics Committee of the Pennsylvania Conference of
					 State Trial Judges ("the Committee") regularly receives inquiries regarding the
					 propriety of sending reference letters and similar communications. Because
					 these inquiries are frequent, the Committee previously issued Formal Advisory
					 Opinions 93-1, 98-1, and 2015-11 to provide guidance
					 to judicial officers subject to the Code of Judicial Conduct ("the Code").
					 2 This Formal Advisory Opinion supersedes Formal
					 Advisory Opinions 93-1, 98-1, and 2015-1.
Applicable Provisions of the Code of Judicial
					 Conduct
The subject of reference
					 letters3 primarily implicates the principle set
					 forth in Canon 1:
Canon 1.
A judge shall uphold and promote the independence,
					 integrity, and impartiality of the judiciary, and shall avoid impropriety and
					 the appearance of impropriety.
Specifically, Rule
					 1.3 is relevant to these
					 inquiries:
Rule
					 1.3. Avoiding Abuse of the
					 Prestige of Judicial Office.
A judge shall not abuse the prestige of judicial office to
					 advance the personal or economic interests of the judge or others, or allow
					 others to do so.
The Code does not consider writing a reference letter to
					 be an ''abuse'' of judicial office in all circumstances. Rather, Comment (2)4
					 of the Rule specifically authorizes writing such a letter in certain
					 circumstances:
Comment (2)
A judge may provide a reference or recommendation for an
					 individual based upon the judge's personal knowledge. The judge may use
					 official letterhead if the judge indicates that the reference is personal and
					 if there is no likelihood that the use of the letterhead would reasonably be
					 perceived as an attempt to exert pressure by reason of the judicial
					 office.
General Guidelines
To provide further clarity, the Committee has adopted the
					 following guidelines:
1. A judge
				  should never write a reference letter for someone the judge does not personally
				  know.
2. A judge may write a
				  reference letter if it is the type of letter that would be written in the
				  ordinary course of business (
e.g.
, a court employee seeking a
				  reference regarding the employee's work history) or a judge's personal
				  relationship. The letter should include a statement of the source and extent of
				  the judge's personal knowledge.
3.
				  The letter ordinarily should be addressed directly to the person or entity for
				  whose information it is being written. The ''blank check'' letter addressed
				  ''To Whom It May Concern'' is discouraged because it is subject to
				  indiscriminate circulation beyond the judge's knowledge or control. In order to
				  reduce the potential for the abuse of the prestige of office, the letter should
				  describe the intended recipient with particularity (e.g., ''Managing Partner'',
				  ''Director of Operations'', etc.).
1 The Committee issued Formal
					 Advisory Opinions 93-1 and 98-1 under a prior version of the Code. The
					 Committee issued Formal Advisory Opinion 2015-1 under the current version of
					 the Code, effective July 1, 2014.
2 CODE OF JUDICIAL CONDUCT, 42
					 PA.C.S.A. (enacted on January 8, 2014, and effective July 1, 2014).
3 For purposes of this Formal
					 Advisory Opinion, the term ''reference letters'' means and includes letters of
					 recommendation.
4 The Ethics Committee
					 acknowledges that the effect of the Comments is unclear. The Pennsylvania
					 Supreme Court adopted Canons 1 through 4 and the corresponding Rules by Order
					 dated January 8, 2014; the Court made no mention of the Comments, although they
					 are published with the Code. Nonetheless, the Ethics Committee uses the
					 Comments to determine the purpose, meaning, and proper application of the
					 Canons and Rules. This is consistent with the ABA's Revised Model Code of
					 Judicial Conduct (2007).
4.
				  However, if the judge is concerned that a letter addressed to a particular
				  person or entity might be construed as an attempt to exert pressure by reason
				  of the judicial office, the more general salutation ''To Whom It May Concern''
				  may be used. For example, if the judge is writing a reference letter for a law
				  clerk who seeks employment with a firm that regularly appears before the court,
				  the general greeting may be more appropriate.
5. When a law clerk employed by the court
				  seeks employment with an attorney or firm appearing before the court, the law
				  clerk must comply with Rules of Professional Conduct 1.11(d) and 1.12(b) by
				  advising the judge. The judge must determine whether it is advisable to write a
				  reference letter under those circumstances, although the better course is to
				  wait until the pending matter concludes.
6. Reference letters may be written by a
				  judge for someone whom the judge knows personally and not professionally, such
				  as a relative, close friend, neighbor, or student if the letters are the type
				  that the judge would normally be requested to write as a result of the judge's
				  personal relationship. The relationship should be such that the judge
				  ordinarily would be disqualified from hearing that person's case.
See
RULE
				  2.11(A); FORMAL
				  ADVISORY OPINION 2015-4 (DISQUALIFICATION AND RECUSAL).
7. Any letter that may be written by a judge
				  may be written on official stationery as permitted by Rule
				  1.3, Comment (2).
8. The reference letter may not be written if
				  the judge has reason to believe the letter may be used for purposes of
				  litigation.
9. A judge writing a
				  reference letter for someone who is the subject of a legal, investigative, or
				  adjudicative proceeding must recognize that the mere writing of such a letter
				  may be perceived as the judge abusing the prestige of judicial office by
				  attempting to influence the process or result in violation of Rules
				  1.2,
				  1.3 and
				  3.1(D) of the
				  Code. On the other hand, those legal, investigative, adjudicative or
				  disciplinary entities may benefit from the judge's knowledge about or
				  experience with the subject of such proceedings. For these reasons, the
				  recommended practice is to respond to a request for information from such
				  authorities, not to initiate a reference letter to them. The subject of such
				  inquiries is able to notify the appropriate authorities of the judge's
				  knowledge and ability, upon their request, to furnish a reference letter.
				  Significantly, and as discussed below, in these circumstances, a judge must not
				  comment on the character of the subject.
See
RULE
				  3.3, citing RULE OF JUDICIAL
				  ADMINISTRATION, 1701(e).
Character ''Testimony''
In pertinent part, Rule of Judicial Administration 1701(e)
					 states: ''No judge or magisterial district judge shall testify voluntarily as a
					 character witness.''
See
RULE OF JUDICIAL ADMINISTRATION,
					 1701(e). Rule
					 3.3 of the Code specifically
					 incorporates Rule 1701(e) as ''a canon of ethics for the purposes of Section 17
					 of the Judiciary Article.''
Id
. Moreover, Rule
					 1.1 of the Code requires judges
					 to comply with the law, including the Rules of Judicial Administration.
The Ethics Committee has interpreted the phrase ''testify
					 voluntarily as a character witness'' in Rule 1701(e) to include writing a
					 reference letter on behalf of an individual involved in legal, investigatory,
					 or adjudicative proceedings- whether administrative, civil, criminal, or
					 otherwise. If a judge is asked to write such a reference letter, it is
					 inconsequential that the judge is not under oath. In these circumstances, which
					 would include, but not be limited to, writing a reference letter on behalf of
					 an individual in connection with sentencing, parole,5 pardon, clemency, or
					 discipline, a judge may not offer character evidence in any form without fully
					 complying with Rule of Judicial Administration 1701, which requires and sets
					 forth the procedure for obtaining a subpoena allowed by the Supreme Court.
See
RULE OF JUDICIAL ADMINISTRATION, 1701(b) (''No subpoena to
					 compel a judge or magisterial district judge to testify as a character witness
					 shall be issued or enforced unless the issuance of the subpoena shall have been
					 specially allowed by the Supreme Court pursuant to this rule.'').
This interpretation does not forbid a judge from commenting
					 on character in other circumstances outside of legal, investigatory, or
					 adjudicative proceedings, such as where the person is well-known by the judge
					 and is seeking, for example, employment, education, appointment, admission, or
					 award. The Ethics Committee does not consider the judge's comments in those
					 situations to be ''testi- [mony]. . .as a character witness.'' For example,
					 judges may be well-suited to comment on a law clerk's character when the law
					 clerk is applying for employment, or on the character of a family friend who is
					 applying to college; and it may be perfectly reasonable and appropriate to do
					 so when the judge follows the General Guidelines above.
This approach, which either prohibits or conditionally
					 permits statements of character depending in part on the purpose and target of
					 the letter, recognizes the difficulty in drawing clear and meaningful
					 distinctions between statements of character and similar statements regarding a
					 person's abilities, qualities, personality, and demeanor, all of which may be
					 extremely helpful to the recipient of the letter. Nonetheless, when writing any
					 reference letter, a judge should be cautious and consider limiting the comments
					 to facts and observations that avoid the complexities of a person's
					 character.
Conclusion
To summarize, reference letters may be written by a judge
					 if they are of the type that would be written in the ordinary course of
					 business or personal relationships. A judge must take care, however, to be sure
					 that a person with an insubstantial relationship to the judge is not attempting
					 to use the judge's office to advance personal interests. Significantly, a judge
					 may not voluntarily provide character testimony-even in the form of a letter-on
					 behalf of an individual involved in legal, investigatory, or adjudicative
					 proceedings. Conversely, the Code does not forbid a judge from commenting on
					 the character of certain persons in certain contexts, including those where the
					 subject person is well-known by the judge and is seeking employment, education,
					 appointment, admission, or award.
This Formal Advisory Opinion is intended to provide
					 judicial officers subject to the Code of Judicial Conduct with broad guidance
					 regarding one of the Committee's most frequent areas of inquiry. If a judicial
					 officer subject to the Code has a question concerning the application of these
					 guidelines, the judicial officer should make a specific, written request for
					 advice from a member of the Committee. The Code provides that, although such
					 opinions are not per se binding on the Judicial Conduct Board, the Court of
					 Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in
					 reliance thereon shall be considered in determining whether discipline should
					 be recommended or imposed. Judicial officers are reminded that they will not be
					 subject to this ''rule of reliance'' based solely on their reading of this
					 Formal Advisory Opinion.
5 For example, a sentencing
					 judge may, without addressing character, make a recommendation regarding
					 parole, as specifically permitted by Section 6134(b) of the Prisons and Parole
					 Act. See
					 61
					 PA.C.S.A. §
											6134.