2011-30 (Emergency Staff Opinion issued November 28, 2011)
Advancing Private Interests; Prestige of Office; Writing; Family;
Rule 1.3
 
Issue: A Judicial Official’s spouse has been asked to write a letter supporting the spouse’s first cousin in a criminal matter. The judge assigned to hear the cousin’s case has asked the Public Defender to obtain letters of support indicating why the cousin should be sent to drug rehabilitation instead of prison. The Judicial Official’s spouse would like to help his/her family member, but the inquiring Judicial Official questions the propriety of the letter writing given the fact that the spouse uses the same last name as the Judicial Official and that Judicial Official is friendly with the presiding judge. May the Judicial Official’s spouse write the letter of support without violating the Code?
 
Response: This inquiry was circulated to the Committee members and all members provided responses in agreement with the advice. Taking into account the unanimous individual comments of Committee members, staff advised the Judicial Official that it would not be a violation of the Code of Judicial Conduct for his/her spouse to write a letter on behalf of the spouse’s first cousin, but that the Judicial Official should request that the spouse: (1) not refer in any way to the Judicial Official or the Judicial Official’s position, (2) not identify him/herself as the spouse of a judicial official, (3) not state or imply in any way that his/her views are shared by the Judicial Official and (4) limit the content of the letter to describing personal characteristics and avoid expressing an opinion about the legal measures that might be involved in the criminal proceeding. While Rule 1.3 states broadly that “[a] judge shall not use or attempt to use the prestige of judicial office to advance the personal or economic interest of others or allow others to do so,” the Rule clearly contemplates a situation in which a judge has supervisory or other legal authority over such "others". In rendering this emergency opinion, Committee members and staff also considered New York Advisory Committee Opinion 09-198 (there is no prohibition barring a judge’s spouse from writing a letter to a presiding justice of the Appellate Division supporting the reinstatement of a disbarred attorney).