Issue: May a Judicial Official serve as a reference for an attorney seeking certification by the National Association of Counsel for Children (“NACC”)?

Additional Facts: The Judicial Official stated that he/she knows the attorney’s qualifications because the attorney appeared before the Judicial Official in the past (over 3 years ago) as a Guardian Ad Litem and as a member of the Juvenile Public Defenders panel, and has appeared before the Judicial Official twice as private counsel in the past year.

The mission of the NACC is to improve the lives of children and families by ensuring that juvenile proceedings produce justice. As a multidisciplinary membership organization, the NACC works to strengthen legal advocacy for children and families by: strengthening the delivery of legal services, enhancing the quality of legal services affecting children, improving courts and agencies, and advancing the rights and interests of children and families.

Section 2.4.1 (Collection of References by NACC) of the NACC Standards for Child Welfare Law Attorney Specialty Certification states:

• NACC will solicit confidential statements from all persons listed as references and may solicit confidential statements of reference from other persons, familiar with the applicant’s practice, not specifically named by the applicant. All reference statements received will be reviewed by the NACC to assess whether the applicant has demonstrated an appropriate level of skill and expertise.

Applicable Rules of Judicial Conduct: Rule 1.2 of the Code of Judicial Conduct 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.” Comment (2) to Rule 1.3 notes that a judge may provide a reference or recommendation for an individual based on the judge’s personal knowledge.

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 of the Code 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.

Discussion:
This Committee has issued a number of opinions concerning the propriety of a judge serving as a reference in various circumstances and for different organizations. In JE 2009-15, the Committee advised a Judicial Official that he/she should decline to serve as an evaluator for the Child Protection Attorney because the process is not likely to remain confidential. Judges were advised, in JE 2011-17, not to provide peer reviews for Martindale-Hubbell because changes to the evaluation system included the potential that the Judicial Official’s identity could be ascertained. Similarly, in JE 2014-20, the Committee unanimously determined that the Judicial Official should decline to complete an online survey, post-trial, rating a GAL or AMC’s performance before the court because the process was not likely to remain confidential.

In contrast, in JE 2012-16, a judge was permitted to complete a questionnaire about a lawyer who was being considered for inclusion in a highly selective international legal honorary society because there would be no public disclosure of the completed questionnaire and the lawyer would not be provided with information regarding the Judicial Official. The Committee determined that completing the questionnaire was analogous to providing a letter of support for an attorney as authorized, subject to conditions, by JE 2009-05 and was not analogous to completing a peer review for Martindale-Hubbell, which was prohibited in JE 2011-17. The Committee determined that judges may complete references for Chambers and Partners, with conditions, in JE 2013-40, because the references would remain anonymous and will not contain information that would reveal the identity of the judge.

Recommendation: Based on the facts presented, including that the NACC certification process includes collection of confidential references from persons familiar with the applicant’s practice, the Judicial Official was advised that he/she may provide the reference to NACC, subject to the following conditions:

1. The Judicial Official has personal knowledge of the attorney’s qualifications that are relevant for the NACC specialty certification. Rule 1.3, cmt. (2);
2. The attorney 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 attorney seeking certification nor members of his or her law firm have cases pending or appearances before the Judicial Official at the time the reference is provided or for a reasonable period of time, under the circumstances, before or after the submission of the reference. For appearances after the reference is provided, the Judicial Official may disclose that he or she provided a reference, 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 above limitation with respect to members of the applicant’s law firm[s] does not apply to large public employers, such as the Division of Criminal Justice, the Public Defender Services Commission and the Office of the Attorney General; 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 agree to provide the reference. Rule 2.1.

Committee on Judicial Ethics