Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 06-1

Under what circumstances may a judge send letters of recommendation?

Canon 2B of the Canons of Judicial Conduct provides in part that “a judge shall not lend the prestige of judicial office to advance the private interests of the judge or others….” The relevant Commentary provides some guidelines:

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may, based on the judge's personal knowledge, serve as a reference or provide a letter of recommendation. When using court stationery for letters of reference an indication should be made that the opinion expressed is personal and not an opinion of the court.

Commentary, Canon 2B of the Canons of Judicial Conduct.

The Committee has issued several opinions regarding related issues, but each opinion addressed a very specific circumstance.

In Opinion 00-8, the Committee advised that a judge could not write a letter to the Virginia State Bar supporting the petition for reinstatement of an attorney who had surrendered his license to practice law, and could not initiate a telephone call to the Virginia State Bar counsel's office in support of an attorney facing disciplinary action. The Committee explained that such communication amounted to improperly “testifying as a character witness.”

In Opinion 01-6, the Committee advised that a judge ethically may sign a statement on an application for appointment as a notary, which represents that the judge has examined the application and recommends the applicant for appointment. The Committee explained that the Virginia General Assembly specifically has designated judges to be among the public officers authorized to execute the notary applications. Although the notary application form uses the verb “recommends,” the Committee explained that “the judge clearly is not certifying the applicant's good character,” but instead is engaging in “no more than a ministerial act.”

In Opinion 03-2, the Committee advised that, while a judge may not initiate a letter or telephone call on behalf of a candidate for judicial office when the request for such a recommendation is made by the candidate, a judge may respond to an official inquiry from the General Assembly, a legislator, an authorized staff member or, if they are the appointing authority, the Governor or a circuit court judge.

While these earlier opinions provide specific answers to particular situations, they do not provide guidance in the much more common context in which judges are asked to write letters of recommendation. The typical examples of situations in which some judges may choose to send letters of recommendation include letters on behalf of people who are applying to college or law school, seeking membership in a state bar, involved in a process such as an adoption that requires the recommendation of friends or neighbors, or other similar situations.

It is worth noting initially that judges may exercise their discretion to decline an invitation to write a letter of recommendation. As set forth below, while the Canons allow judges to send letters of recommendation under appropriate circumstances, judge are free to adopt a blanket policy declining all such requests.

If a judge is considering writing such a letter of recommendation, he must take reasonable steps to avoid lending the prestige of his office to advance another's private interest. This basic principle should guide every aspect of a judge's consideration.

First, judges should consider the context of the request for a letter of recommendation. For instance, specific rules cover a judge's recommendation of another person for a judicial appointment. (See Canon 2B; JEAC Opinion 03-2). There are other situations in which judges should not provide letters of recommendation. Canon 2B indicates that “a judge shall not testify as a character witness.” This prohibition extends to writing a letter as a character witness, or a letter that is the substantial equivalent. For instance, judges should not initiate letters supporting someone's efforts to have their civil rights restored, or attempts to renew permits such as those allowing the possession of concealed weapons. For the same reason, judges should not send a letter to someone's former employer recommending that the employer reinstate that person. Similarly, judges should not recommend someone engaged in a business venture, if the primary purpose is to advance that person's business.

Second, the need to avoid lending the prestige of judicial office to advance the private interests of others also must guide the transmission of any letters of recommendation that a judge might choose to send. Judges generally should send such letters directly to the institution or group that is accepting the letters. Judges should address the letter specifically to the institution or group, and should avoid such salutations as “To whom it may concern.” The judge may choose to ask explicitly that the recipient of the letter maintain confidentiality and not share the letter with any other institution or person. In any event, the judge should have reasonable assurance that the recommendation will be treated confidentially and will not be distributed by the recipient.

If a judge initiates a telephone call in order to recommend someone, there is a greater risk that the call may be perceived as coercive or as an improper use of judicial prestige. Therefore, it is preferable that a judge make a recommendation in writing, or by telephone in response to an inquiry from the decision maker. A judge should initiate a recommendation by telephone call only if the surrounding circumstances are such that the judge is reasonably certain that the call will not be perceived as coercive or improper. A judge who initiates such a call always should make clear to the recipient that the call is personal, not official court business.

Third, judges must assure that the form and appearance of their written recommendations do not risk lending the prestige of their judicial office to advance the private interests of others. If judges use official stationery, they should indicate clearly on the letter that the communication is “personal and unofficial.” Commentary, Canon 2B. Judges should take this precaution even when using personal stationery, if the envelope bears any indication that it comes from a court.

Fourth, judges should limit the substance of their recommendations. Those judges who choose to send such letters may do so only for individuals about whom they have firsthand knowledge. The substance of such a letter, therefore, should be limited to what the judge personally has observed about the individual. For instance, judges should not provide an opinion about the individual's reputation, or convey what others have told the judge about the individual.

Although judges may choose not to send any letters of recommendation, those doing so must consider carefully the situation, the means of transmission, the appearance of the letter they send and the substance of their recommendation. In all of these steps, judges should strive to avoid giving even the appearance of lending the prestige of their judicial office to advance the private interests of others.

Canon 2B, Canons of Judicial Conduct

Commentary, Canon 2B, Canons of Judicial Conduct

Virginia Advisory Opinion 00-8 (Sept. 11, 2000)

Virginia Advisory Opinion 01-6 (April 27, 2001)

Virginia Advisory Opinion 03-2 (July 18, 2003)