207 Pa. Code §§ 21-1

Current through Register Vol. 54, No. 49, December 7, 2024

Section 21-1 - Reference Letters

The Ethics Committee of the Pennsylvania Conference of State Trial Judges ("the Committee") regularly receives inquiries regarding the propriety of sending reference letters and similar communications. Because these inquiries are frequent, the Committee previously issued Formal Advisory Opinions 93-1, 98-1, and 2015-1¹ to provide guidance to judicial officers subject to the Code of Judicial Conduct ("the Code"). ² This Formal Advisory Opinion supersedes Formal Advisory Opinions 93-1, 98-1, and 2015-1.

Applicable Provisions of the Code of Judicial Conduct

The subject of reference letters³ primarily implicates the principle set forth in Canon 1:

Canon 1.

A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.

Specifically, Rule 1.3 is relevant to these inquiries:

Rule 1.3. Avoiding Abuse of the Prestige of Judicial Office.

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.

The Code does not consider writing a reference letter to be an ''abuse'' of judicial office in all circumstances. Rather, Comment (2)4 of the Rule specifically authorizes writing such a letter in certain circumstances:

Comment (2)

A judge may provide a reference or recommendation for an individual based upon the judge's personal knowledge. The judge may use official letterhead if the judge indicates that the reference is personal and if there is no likelihood that the use of the letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office.

General Guidelines

To provide further clarity, the Committee has adopted the following guidelines:

1. A judge should never write a reference letter for someone the judge does not personally know.

2. A judge may write a reference letter if it is the type of letter that would be written in the ordinary course of business (e.g., a court employee seeking a reference regarding the employee's work history) or a judge's personal relationship. The letter should include a statement of the source and extent of the judge's personal knowledge.

3. The letter ordinarily should be addressed directly to the person or entity for whose information it is being written. The ''blank check'' letter addressed ''To Whom It May Concern'' is discouraged because it is subject to indiscriminate circulation beyond the judge's knowledge or control. In order to reduce the potential for the abuse of the prestige of office, the letter should describe the intended recipient with particularity (e.g., ''Managing Partner'', ''Director of Operations'', etc.).

¹ The Committee issued Formal Advisory Opinions 93-1 and 98-1 under a prior version of the Code. The Committee issued Formal Advisory Opinion 2015-1 under the current version of the Code, effective July 1, 2014.

² CODE OF JUDICIAL CONDUCT, 42 PA.C.S.A. (enacted on January 8, 2014, and effective July 1, 2014).

³ For purposes of this Formal Advisory Opinion, the term ''reference letters'' means and includes letters of recommendation.

⁴ The Ethics Committee acknowledges that the effect of the Comments is unclear. The Pennsylvania Supreme Court adopted Canons 1 through 4 and the corresponding Rules by Order dated January 8, 2014; the Court made no mention of the Comments, although they are published with the Code. Nonetheless, the Ethics Committee uses the Comments to determine the purpose, meaning, and proper application of the Canons and Rules. This is consistent with the ABA's Revised Model Code of Judicial Conduct (2007).

4. However, if the judge is concerned that a letter addressed to a particular person or entity might be construed as an attempt to exert pressure by reason of the judicial office, the more general salutation ''To Whom It May Concern'' may be used. For example, if the judge is writing a reference letter for a law clerk who seeks employment with a firm that regularly appears before the court, the general greeting may be more appropriate.

5. When a law clerk employed by the court seeks employment with an attorney or firm appearing before the court, the law clerk must comply with Rules of Professional Conduct 1.11(d) and 1.12(b) by advising the judge. The judge must determine whether it is advisable to write a reference letter under those circumstances, although the better course is to wait until the pending matter concludes.

6. Reference letters may be written by a judge for someone whom the judge knows personally and not professionally, such as a relative, close friend, neighbor, or student if the letters are the type that the judge would normally be requested to write as a result of the judge's personal relationship. The relationship should be such that the judge ordinarily would be disqualified from hearing that person's case. See RULE 2.11(A); FORMAL ADVISORY OPINION 2015-4 (DISQUALIFICATION AND RECUSAL).

7. Any letter that may be written by a judge may be written on official stationery as permitted by Rule 1.3, Comment (2).

8. The reference letter may not be written if the judge has reason to believe the letter may be used for purposes of litigation.

9. A judge writing a reference letter for someone who is the subject of a legal, investigative, or adjudicative proceeding must recognize that the mere writing of such a letter may be perceived as the judge abusing the prestige of judicial office by attempting to influence the process or result in violation of Rules 1.2, 1.3 and 3.1(D) of the Code. On the other hand, those legal, investigative, adjudicative or disciplinary entities may benefit from the judge's knowledge about or experience with the subject of such proceedings. For these reasons, the recommended practice is to respond to a request for information from such authorities, not to initiate a reference letter to them. The subject of such inquiries is able to notify the appropriate authorities of the judge's knowledge and ability, upon their request, to furnish a reference letter. Significantly, and as discussed below, in these circumstances, a judge must not comment on the character of the subject. See RULE 3.3, citing RULE OF JUDICIAL ADMINISTRATION, 1701(e).

Character ''Testimony''

In pertinent part, Rule of Judicial Administration 1701(e) states: ''No judge or magisterial district judge shall testify voluntarily as a character witness.'' See RULE OF JUDICIAL ADMINISTRATION, 1701(e). Rule 3.3 of the Code specifically incorporates Rule 1701(e) as ''a canon of ethics for the purposes of Section 17 of the Judiciary Article.'' Id. Moreover, Rule 1.1 of the Code requires judges to comply with the law, including the Rules of Judicial Administration.

The Ethics Committee has interpreted the phrase ''testify voluntarily as a character witness'' in Rule 1701(e) to include writing a reference letter on behalf of an individual involved in legal, investigatory, or adjudicative proceedings- whether administrative, civil, criminal, or otherwise. If a judge is asked to write such a reference letter, it is inconsequential that the judge is not under oath. In these circumstances, which would include, but not be limited to, writing a reference letter on behalf of an individual in connection with sentencing, parole,5 pardon, clemency, or discipline, a judge may not offer character evidence in any form without fully complying with Rule of Judicial Administration 1701, which requires and sets forth the procedure for obtaining a subpoena allowed by the Supreme Court. See RULE OF JUDICIAL ADMINISTRATION, 1701(b) (''No subpoena to compel a judge or magisterial district judge to testify as a character witness shall be issued or enforced unless the issuance of the subpoena shall have been specially allowed by the Supreme Court pursuant to this rule.'').

This interpretation does not forbid a judge from commenting on character in other circumstances outside of legal, investigatory, or adjudicative proceedings, such as where the person is well-known by the judge and is seeking, for example, employment, education, appointment, admission, or award. The Ethics Committee does not consider the judge's comments in those situations to be ''testi- [mony]. . .as a character witness.'' For example, judges may be well-suited to comment on a law clerk's character when the law clerk is applying for employment, or on the character of a family friend who is applying to college; and it may be perfectly reasonable and appropriate to do so when the judge follows the General Guidelines above.

This approach, which either prohibits or conditionally permits statements of character depending in part on the purpose and target of the letter, recognizes the difficulty in drawing clear and meaningful distinctions between statements of character and similar statements regarding a person's abilities, qualities, personality, and demeanor, all of which may be extremely helpful to the recipient of the letter. Nonetheless, when writing any reference letter, a judge should be cautious and consider limiting the comments to facts and observations that avoid the complexities of a person's character.

Conclusion

To summarize, reference letters may be written by a judge if they are of the type that would be written in the ordinary course of business or personal relationships. A judge must take care, however, to be sure that a person with an insubstantial relationship to the judge is not attempting to use the judge's office to advance personal interests. Significantly, a judge may not voluntarily provide character testimony-even in the form of a letter-on behalf of an individual involved in legal, investigatory, or adjudicative proceedings. Conversely, the Code does not forbid a judge from commenting on the character of certain persons in certain contexts, including those where the subject person is well-known by the judge and is seeking employment, education, appointment, admission, or award.

This Formal Advisory Opinion is intended to provide judicial officers subject to the Code of Judicial Conduct with broad guidance regarding one of the Committee's most frequent areas of inquiry. If a judicial officer subject to the Code has a question concerning the application of these guidelines, the judicial officer should make a specific, written request for advice from a member of the Committee. The Code provides that, although such opinions are not per se binding on the Judicial Conduct Board, the Court of Judicial Discipline, or the Supreme Court of Pennsylvania, action taken in reliance thereon shall be considered in determining whether discipline should be recommended or imposed. Judicial officers are reminded that they will not be subject to this ''rule of reliance'' based solely on their reading of this Formal Advisory Opinion.

⁵ For example, a sentencing judge may, without addressing character, make a recommendation regarding parole, as specifically permitted by Section 6134(b) of the Prisons and Parole Act. See 61 PA.C.S.A. § 6134.

207 Pa. Code §§ 21-1

The provisions of this § 21-1 added August 7, 2021, 51 Pa.B. 4261.