THE COURTS

PART II. CONDUCT STANDARDS

[ 207 PA. CODE CH. 33 ]

Formal Opinion 2015-1

[45 Pa.B. 1841]
[Saturday, April 11, 2015]

 Notice is hereby given that the Ethics Committee of the Pennsylvania Conference of State Trial Judges has superseded Formal Opinion 98-1 Letters of Reference and has replaced it with Formal Opinion 2015-1 Letters of Reference which is set forth as follows.

EDWARD D. REIBMAN, 
Chairperson
Ethics Committee
Pennsylvania Conference of State Trial Judges

Annex A

TITLE 207. JUDICIAL CONDUCT

PART II. CONDUCT STANDARDS

CHAPTER 33. CODE OF JUDICIAL CONDUCT

Subchapter B. FORMAL OPINIONS

§ 15-1. Letters of Reference.

 The Ethics Committee of the Pennsylvania Conference of State Trial Judges (''the Committee'') regularly receives inquiries regarding the propriety of sending letters of reference and other similar communications. Because of the frequency of such inquiries, the Committee issued Formal Opinions 93-1 and 98-1 to provide guidance to judicial officers subject to the Code of Judicial Conduct with respect to such matters. By Order of the Supreme Court of Pennsylvania a new code of Judicial Conduct became effective July 1, 2014 (''New Code''). The Committee issues this Formal Opinion to bring its advice in conformity with the New Code, and it supersedes Formal Opinions 93-1 and 98-1.

 Under the New Code the overarching principle embodied in Canon 1 is now mandatory. Therefore, as with any inquiry, a judge's analysis of what conduct is or is not prohibited commences with the application of Canon 1 to the conduct.

 Canon 1 of the Code of Judicial Conduct provides that:

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

 The Committee has recognized, as have other advisory bodies on judicial conduct throughout the country, that judges are sometimes requested to write letters of reference or similar communications on behalf of persons with whom the judge is familiar. New Rule 1.3 and Comment 2 thereto specifically address letters of reference and provide:

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.

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 reasons of the judicial office.

 In order to bring consistency to our decisions in this regard and provide guidance to judicial officers subject to the New Code, the Committee has adopted the following guidelines with regard to writing letters of reference:

 (1) A judge should never write a letter of reference for a person he or she does not personally know.

 (2) A judge may write a letter of reference 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 with regard to 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 should ordinarily be addressed and mailed directly to the person or entity for whose information it is being written. On the other hand, if the judge is concerned that a letter addressed to a particular person or entity might be construed as the judge attempting to exert pressure by reason of the judicial office, e.g., in the case of a personal employee of the judge, such as a law clerk, who is seeking other employment, particularly with a lawyer or law firm before the court, the more general address and salutation of ''To Whom It May Concern'' may be used. Otherwise, the ''blank check'' letter ''To Whom It May Concern'' should be avoided as it can be abused more easily by being shopped around indiscriminately and beyond the judge's knowledge or control more so than a letter addressed to a particular person. If the law clerk is still employed by the Court, the law clerk must comply with Rules 1.11(d) and 1.12(b) of the Rules of Professional Conduct and advise the judge if the clerk is seeking employment with any lawyer or firm appearing in front of the judge. The judge will have to determine whether it is advisable to make a recommendation under those circumstances, but the better course would be to wait until the pending matter has concluded.

 (4) Letters of reference may be written by a judge for someone whom the judge knows personally and not professionally, such as a relative or close friend, if they 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.

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

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

 (7) These guidelines are not intended to contravene Rule 1701(e) of the Rules of Judicial Administration, which remains in effect and provides: ''No judge or magisterial district judge shall testify voluntarily as a character witness.''

 To summarize, letters of reference 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 him or her is not attempting to use the judge's office to advance personal interests.

 This Formal Opinion is intended to provide judicial officers subject to the New Code with broad guidance regarding one of the Committee's most frequent areas of inquiry. Judicial officers are reminded that to enjoy the rule of reliance on the Committee's advice, they should make a written request for advice from the Committee tailored to the particular situation confronted. If a judicial officer subject to the Code has a question concerning the application of these guidelines, he or she should make a specific, written request for advice from a member of the Committee. The New 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.

[Pa.B. Doc. No. 15-658. Filed for public inspection April 10, 2015, 9:00 a.m.]

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