Issue: May a Judicial Official complete a form containing a confidential statement of reference for the recertification of an attorney by the National Board of Trial Advocacy (hereinafter, NBTA)?

Additional Facts: The form indicates that the Judicial Official’s name either was submitted by the applicant or was selected by NBTA as a judge likely to be familiar with the applicant’s work. The form also notes, in relevant part, that “The information requested by this form will only be used for the purpose of evaluating the applicant’s qualifications for (re)certification. Any statement that you make will be treated as a confidential communication; statements of reference are not made available to the applicants and it is required that each applicant waive the right to review the statements of reference.” The completed reference is sent directly by the Judicial Official to the National Board of Legal Specialty Certification, which NBTA is a part of. The National Board of Legal Specialty Certification is the certifying board or entity approved by the Connecticut Legal Specialization Screening Committee to certify lawyers as specialists in civil trial practice and criminal law. The criteria for recertification includes that the applicant demonstrate substantial involvement in the area of specialty during the preceding 5 years by showing either that the applicant has actively participated as counsel in one or more cases for a total of at least 15 trial days, participated in 40 litigation matters or 60 performances at which testimony was taken or argument made, or a combination of the above which demonstrates substantial involvement. The applicant must include 6 references, of which at least 2 must be judges before whom the applicant appeared in the past 3 years and at least 3 lawyers. In order to be considered for recertification, at least 1 of the judges and at least 2 of the attorneys must complete and submit the forms. The applicant’s website states that the applicant has tried many cases.

The questionnaire asks, inter alia, whether the reference is a judge before whom the applicant appeared in proceedings in the past 3 years, how the reference is associated with the applicant, whether there are any incidents in the applicant’s law practice known directly or indirectly that reflect a lack of proficiency, dedication, conviction of a felony or lesser offense involving moral turpitude or misconduct, charges of a serious crime, suspension, disbarment, etc. The reference also is asked to rate the applicant on a scale of 1 – 5 on the factors of preparation, resourcefulness, consideration of clients, knowledge of substantive law, effectiveness of presentation, reputation in the legal community and knowledge of procedure, as well as to provide any additional comments.

Relevant Code Provisions: Rules 1.2, 1.3, 2.1 and 2.11.

Discussion:
Rule 1.2 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 impropriety and 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 to serve 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 to allow others to do so.”

Rule 2.1 states that the judicial duties of a judge take precedence over all of a judge’s personal and extrajudicial activities.

Rule 2.11 states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned” including, but not limited to, when the judge has a personal bias or prejudice concerning a party’s lawyer.

In reaching its conclusion, the Committee considered its prior opinions in JE 2009-05 (subject to various conditions, it was permissible for a Judicial Official to provide a letter of support for an attorney who was nominated to receive a professional service award from a private organization), JE 2009-15 (Juvenile Matters judges should decline, in accordance with Canon 2, to serve as evaluators or references for attorneys seeking contracts with the Commission on Child Protection to provide representation to children and indigent respondents in neglect and termination of parental rights proceedings), JE 2011-17 (a Judicial Official should not provide a peer review of an attorney for Martindale-Hubbell), JE 2012-16 (subject to various conditions, a Judicial Official may complete and submit a questionnaire about a lawyer who is being considered for inclusion in a highly selective international legal honorary society), JE 2013-40 (subject to various conditions, a Judicial Official may serve as a Chambers and Partners “referee” for a law firm that represented the Judicial Official in a few cases prior to his/her appointment to the bench) and JE 2014-20 (a Judicial Official should decline to complete a post-trial survey for a non-profit organization, which the organization wished to use the surveys as performance evaluations for its attorneys).

Based upon the facts provided, including that the information is maintained confidentially, the applicant waives the right to review the statements of reference, the ability of the NBTA to solicit comments from judges and attorneys beyond those whose names are submitted by the applicant, the applicant has tried many cases, and the NBTA is a Connecticut authorized certifying entity, the Committee unanimously advised that the Judicial Official may complete the survey subject to the conditions imposed in JE 2009-05, JE 2012-16 and JE 2013-40, to wit:

• (1) The Judicial Official has personal knowledge of the applicant’s qualifications that are relevant to recertification. Rule 1.3, cmt. (2);
• (2) The applicant is not a relative of the Judicial Official within the meaning of the Code or C.G.S. § 51-39a;
  
• (3) The Judicial Official indicates that the opinions expressed represent the personal opinions of the Judicial Official. Rule 1.3, cmt. (2);
• (4) Neither the applicant nor any member of the applicant’s firm has an appearance before the Judicial Official at the time the form is completed or for a reasonable period, under the circumstances, before or after the form is completed provided that for appearances after the form is completed, the Judicial Official may disclose that he or she completed the survey and in accordance with Rule 2.11 (c), request the parties and their lawyers to consider, outside the presence of the Judicial Official and court personnel, whether to waive disqualification; and
• (5) If the Judicial Official believes that recusal would be required in order to comply with condition (4) because his or her fairness would be impaired, and that recusal is likely to be frequent, the Judicial Official should not complete the form. Rule 2.1.
  

Committee on Judicial Ethics