2014-09 (June 23, 2014)
Character Witness; Advancing Private Interests; Appearance of Impropriety
Rules 1.2, 1.3, 2.10 & 3.3
Issue: May a Judicial Official write a character reference letter
in response to a request by an attorney who is the subject of a pending grievance?
Additional Facts: The attorney regularly represents litigants in the
Judicial Official’s court. The grievance panel
investigating the matter has found probable cause.
The Judicial Official has not been duly summoned.
Response: Rule 1.2 of the Code of Judicial Conduct states that a
“judge shall act at all times in a manner that
promotes public confidence in the independence,
integrity, and impartiality of the judiciary and
shall avoid the appearance of impropriety. The test
for appearance of impropriety is whether the conduct
would create in reasonable minds a perception that
the judge violated this Code or engaged in other
conduct that reflects adversely on the judge’s
honesty, impartiality, temperament, or fitness as a
judge.”
Rule 1.3 states that “[a] judge
shall not use or attempt to use the prestige of
judicial office to advance the personal or economic
interests of the judge or others or allow others to
do so.”
Rule 2.10 (a) of the Code states
that a judge “shall not make any public statement
that might reasonably be expected to affect the
outcome or impair the fairness of a matter pending
or impending in any court or make any non-public
statement that might substantially interfere with a
fair trial or hearing.”
Rule 3.3 of the Code states as follows:
A judge shall not testify
as a character witness in a judicial,
administrative, or other adjudicatory proceeding or
otherwise vouch for the character of a person in a
legal proceeding, except when duly summoned.
Based on the facts presented, in particular
that the JO has not been duly summoned to provide
the character reference, the Committee unanimously
determined that providing the character reference
for an attorney, who is the subject of a grievance
proceeding, is specifically prohibited by Rule 3.3
and generally prohibited by Rules 1.2, 1.3 and
2.10(a).
In reaching its decision, the
Committee took into account its prior opinions in
JE 2008-15 (a Judicial Official should not
provide a letter of reference in the context of an
adversarial character and fitness proceeding
stemming from concern that the candidate cheated on
a college exam);
JE 2012-31 (a Judicial Official, who had been
subpoenaed to testify as a fact witness at an
administrative hearing involving a close personal
friend, could testify as to factual matters and if
asked, respond to questions about the friend’s
character, but must make clear at the start of his
or her testimony that he or she (1) is present
pursuant to a subpoena, and (2) is present only in
his or her personal capacity); and
JE 2013-30 (a Judicial Official may not provide
a letter of reference for a long-time friend in
connection with a federal sentencing hearing because
the Judicial Official had not been subpoenaed).
Committee on Judicial Ethics
