Issue: May a Judicial Official provide a letter of reference to the Attorney General’s Office for a person that works for the Judicial Official as a temporary assistant clerk (hereinafter, TAC)?  

Additional Facts: The Judicial Official has personal knowledge of the employee and his/her qualifications as an attorney. The employee is not a relative, as defined in C.G.S. § 51-39a or the Code of Judicial Conduct. The attorney General’s Office regularly appears before the Judicial Official. The application is not for a specific department within the Office of the Attorney General. While the Attorney General’s Office did not contact the Judicial Official directly for the reference, the TAC provided the Judicial Official with a form from the Attorney General’s Office which is to be completed and returned directly to the Attorney General’s Office as part of the application process. The form requests candid comments regarding specific areas, such as communications skills, analytic ability, etc.

Relevant Code and Statutory Provisions: Rules 1.2, 1.3, 2.1, 2.11 & Canon 4; C.G.S. § 51-39a.

Discussion:
Rule 1.2 of the Code states that a judge “should act at all times in a manner that promotes public confidence in the … 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 of the Code 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.” The Commentary to Rule 1.3 states, in relevant part, as follows:

• (2) A Judge may provide a reference or recommendation for an individual based on the judge’s personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if the use of the letterhead would not reasonably be perceived as an attempt to exert pressure by reason of judicial office.

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, in relevant part, that a judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.

Canon 4 states that “a judge shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”

In reaching its conclusion, the Committee considered its prior decisions in JE 2008-01 (subject to various conditions, a judge may provide a recommendation to an existing court employee applying for another Judicial Branch position), JE 2008-03 (subject to various conditions, a judge may complete a letter of recommendation for a former law clerk applying for a position with the Attorney General’s Office, even if the Attorney General’s Office has appearances in various cases before the judicial official), JE 2008-10 (a judge may not respond to a request from the Judicial Selection Commission requesting a letter of reference for a relative), JE 2008-26 (subject to various conditions, a judge may provide a recommendation specific to the position applied for to a court employee seeking a position with the Judicial Branch in the judicial district where the Judicial Official is currently assigned), JE 2009-08 (subject to various conditions, a judge may serve as a reference for an applicant to a municipal police department), JE 2009-13 (a judge may not provide a letter of recommendation to two US Senators with respect to a person applying for a position with the federal court, but may be listed as a reference and respond if contacted), JE 2011-01 (subject to various conditions, an attorney may list a judge as a reference on the attorney’s Judicial Selection Commission application), JE 2011-18A & 18B (a retiring judge may seek letters of recommendation from judges familiar with his or her work, but the retiring judge must wait until his or her departure from the bench to do so), JE 2011-19 (a judge should not voluntarily contact the Governor’s Legal Counsel to recommend another judge for higher office, but subject to various conditions may serve as a reference), JE 2012-27 (subject to various conditions, a judge may provide a letter of recommendation to the Office of Chief Public Defender for an attorney applying for a supervisory public defender position even though other public defenders appeared before the Judicial Official, and noting that while the recommendation is for a government position, the proposed activity does not involve inappropriate political activity), and JE 2013-32 (a judge should not authorize an Executive Branch employee to include his or her name as a reference where the employee and his or her agency regularly appear before the judge in adversarial proceedings).

Based upon the facts provided, the Committee unanimously determined that while a Judicial Official may not provide a recommendation in connection with government employment that might suggest inappropriate political activity, that prohibition is not applicable on the facts of this inquiry and therefore the Judicial Official may provide a reference or recommendation subject to the following conditions:

• (1) The recommendation is based on personal knowledge of the applicant’s qualifications. Rule 1.3, cmt. (2);
• (2) The applicant is not a relative within the meaning of the Code or General Statutes § 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) The applicant does not have an appearance before the Judicial Official at the time the recommendation is provided, did not have an appearance before the Judicial Official for a reasonable period of time, under the circumstances, prior to the completion of the recommendation, and is not expected to have an appearance before the Judicial Official for a reasonable period of time, under the circumstances, after the Judicial Official completes the recommendation, provided that for appearances after the recommendation is provided, the Judicial Official may disclose that he or she provided a recommendation 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. The Committee noted that while normally the above limitations would apply to the firm to which the recommendation was provided as well as to the attorney for whom the recommendation was provided, in the case of large public employers (the Division of Criminal Justice, the Public Defender Services Commission and the Office of the Attorney General), it only applies to the attorney for whom the recommendation was provided;
• (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 provide the letter of recommendation. Rule 2.1; and
• (6) The letter should be specific to the position being sought (see JE 2008-26).

Committee on Judicial Ethics