Pennsylvania Code › Title 207 - JUDICIAL CONDUCT › Part II - CONDUCT STANDARDS › Chapter 33 - CODE OF JUDICIAL CONDUCT › Subchapter B - FORMAL OPINIONS › Section 15-1 - Letters of Reference

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 letters of reference and other similar communications.
					 Because of the frequency of such inquiries, the Committee issued Formal
					 Opinions 93-1 and 98-1 to provide guidance to judicial officers subject to the
					 Code of Judicial Conduct with respect to such matters. By Order of the Supreme
					 Court of Pennsylvania a new code of Judicial Conduct became effective July 1,
					 2014 ("New Code"). The Committee issues this Formal Opinion to bring its advice
					 in conformity with the New Code, and it supersedes Formal Opinions 93-1 and
					 98-1.
Under the New Code the overarching principle embodied in
					 Canon 1 is now mandatory. Therefore, as with any inquiry, a judge's analysis of
					 what conduct is or is not prohibited commences with the application of Canon 1
					 to the conduct.
Canon 1 of the Code of Judicial Conduct provides
					 that:
A judge shall uphold and promote the independence,
					 integrity, and impartiality of the judiciary, and shall avoid impropriety and
					 the appearance of impropriety.
The Committee has recognized, as have other advisory bodies
					 on judicial conduct throughout the country, that judges are sometimes requested
					 to write letters of reference or similar communications on behalf of persons
					 with whom the judge is familiar. New Rule
					 1.3 and Comment 2 thereto
					 specifically address letters of reference and provide:
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.
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 reasons of the judicial
					 office.
In order to bring consistency to our decisions in this
					 regard and provide guidance to judicial officers subject to the New Code, the
					 Committee has adopted the following guidelines with regard to writing letters
					 of reference:
(1) A judge should never
				  write a letter of reference for a person he or she does not personally
				  know.
(2) A judge may write a
				  letter of reference 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 with
				  regard to 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
				  should ordinarily be addressed and mailed directly to the person or entity for
				  whose information it is being written. On the other hand, if the judge is
				  concerned that a letter addressed to a particular person or entity might be
				  construed as the judge attempting to exert pressure by reason of the judicial
				  office, e.g., in the case of a personal employee of the judge, such as a law
				  clerk, who is seeking other employment, particularly with a lawyer or law firm
				  before the court, the more general address and salutation of "To Whom It May
				  Concern" may be used. Otherwise, the "blank check" letter "To Whom It May
				  Concern" should be avoided as it can be abused more easily by being shopped
				  around indiscriminately and beyond the judge's knowledge or control more so
				  than a letter addressed to a particular person. If the law clerk is still
				  employed by the Court, the law clerk must comply with Rules
				  1.11(d) and
				  1.12(b)  of the
				  Rules of Professional Conduct and advise the judge if the clerk is seeking
				  employment with any lawyer or firm appearing in front of the judge. The judge
				  will have to determine whether it is advisable to make a recommendation under
				  those circumstances, but the better course would be to wait until the pending
				  matter has concluded.
(4) Letters
				  of reference may be written by a judge for someone whom the judge knows
				  personally and not professionally, such as a relative or close friend, if they
				  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.
(5) Any letter that may be
				  written by a judge may be written on official stationery as permitted by Rule
				  1.3, Comment (2).
(6) The letter of
				  reference may not be written if the judge has reason to believe the letter may
				  be used for purposes of litigation.
(7) These guidelines are not intended to
				  contravene Rule 1701(e) of the Rules of Judicial Administration, which remains
				  in effect and provides: "No judge or magisterial district judge shall testify
				  voluntarily as a character witness."
To summarize, letters of reference 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 him or her is not
					 attempting to use the judge's office to advance personal interests.
This Formal Opinion is intended to provide judicial
					 officers subject to the New Code with broad guidance regarding one of the
					 Committee's most frequent areas of inquiry. Judicial officers are reminded that
					 to enjoy the rule of reliance on the Committee's advice, they should make a
					 written request for advice from the Committee tailored to the particular
					 situation confronted. If a judicial officer subject to the Code has a question
					 concerning the application of these guidelines, he or she should make a
					 specific, written request for advice from a member of the Committee. The New
					 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.