The Ethics Advisory Committee has been asked whether a judge may sign a letter of recommendation in support of a private counseling service seeking a federal grant.

A private counseling service which receives referrals from the juvenile court has asked a juvenile court judge to sign a letter of recommendation which will be used in seeking a federal grant. The letter of recommendation contains the following language: I have had a working relationship with [the specific therapist and the counseling center] for several years. I appreciate and admire their work and will continue to support their efforts at prevention and counseling of youth. The letter will apparently be addressed: to whom it may concern.

Canon 2B, Utah Code of Judicial Conduct states that “A judge shall not lend the prestige of the judicial office to advance the private interests of others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness but may provide honest references in the regular course of business or social life. The question for the Committee is whether the letter of recommendation is an honest reference in the regular course of business, or whether the letter will advance the private interests of others or allow others to convey the impression that they are in a special position of influence.

In Informal Opinion 91-2, the Committee addressed two situations involving letters of recommendation. In the first situation, an individual who had done construction work for the judge requested that the judge write a letter of recommendation to help the person secure financial support for a new business venture. The business was to be a treatment facility which would receive referrals from the courts. The Committee determined that the judge could not write the letter of recommendation in that situation. The Committee stated that the judge was in no better position than any other person to write such a letter and the writing of the letter would be lending the prestige of the judicial office to advance the private interests of another. The Committee was also concerned because the letter of reference could be perceived as an indication that the judge would make referrals to the requesting party's facility rather than other available facilities. This would convey the impression that the person was in a special position to influence the judge.

The second fact situation in that opinion dealt with a person applying for a federal probation position. The person had worked in the judge’s court in a professional capacity. Because the judge knew the person in a professional capacity, the Committee found that a letter of recommendation could be written. The letter of recommendation was an honest reference in the regular course of business.

The fact situation in this instance contains elements of both of those fact situations and letters of recommendation. The judge is aware of the private facility because of work that occurs in a professional capacity. However, the facility is a private enterprise which receives referrals from the court and is seeking funding for its continued operations.

As the Committee has reviewed ethics advisory opinions it has previously issued and opinions from other states dealing with letters of recommendation, it is apparent that letters of recommendation are permitted when judges are speaking on behalf of individuals. The Committee is not aware of any opinions in which an ethics advisory committee has approved of a judge writing a letter of recommendation on behalf of a private enterprise when the enterprise is seeking funding. Based on this precedent, or lack thereof, the Committee is of the opinion that the judge cannot write a letter of recommendation on behalf of the private facility.

There are several reasons for this conclusion. First, although there may ultimately be situations when a judge may provide a recommendation on behalf of an organization, the Code contemplates recommendations on behalf of individuals that the judge knows in a professional capacity. Second, because the organization receives referrals from the juvenile court, the letter of recommendation could be perceived as allowing the organization to convey the impression that they are in a special position of influence. Even when letters of recommendation are permitted on behalf of individuals, a judge may not write a letter on behalf of someone who will frequently appear before the judge. The reason for this is that it could be reasonably perceived that the judge would give undue credence to the arguments, testimony or evidence of the person who has received the letter. Finally, the Committee is concerned that the sole purpose of this letter is to raise funds for the organization. Canon 4C(B)(b)(1) prohibits a judge from direct or indirect participation in fund-raising. The letter could be considered fund-raising on behalf of the organization.

In conclusion, the Committee finds that the judge should not sign the letter of recommendation. The recommendation could be seen as allowing the organization to convey the impression that it is in a special position of influence or could be seen as judicial participation in fund-raising. As a final note, the Committee believes that the judge could be listed as a reference in a grant application. The entity controlling the funds could then contact the judge for the judge's professional impressions. In this manner, the entity could determine whether the judge's opinion is necessary and the judge would not be allowing the organization to convey any impressions and would not be engaged in fund-raising.

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Two Committee members, while joining in the majority of the foregoing opinion would delete the comment in the last paragraph of the opinion beginning with “As a final note . . . .”

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One Committee member would replace the last three paragraphs of the opinion with the following:

It is interesting to note that the 1990 ABA Model Code of Judicial Conduct, on which the Utah Code is patterned, does not include in Canon B(2) the exception for providing references. Rather, the matter is covered in the commentary to the Code, which provides, in pertinent part, as follows:

Although a judge should be sensitive to possible abuse of the prestige of office, a judge may provide a letter of recommendation based on the judge's personal knowledge. A judge also may permit the use of the judge's name as a reference, and respond to a request for a personal recommendation when solicited by a selection authority such as a prospective employer, judicial selection committee or law school admissions office.

There is obviously some tension between the prohibition on lending the judge’s official prestige to advance the private interests of others and the authorization to “provide honest references in the ordinary course of business.” It is inarguable that a letter of recommendation from a judge concerning the judge's law clerk will advance the private interests of the law clerk seeking employment with a law firm and that the law firm considering the employment application of the clerk will take the reputation of the judge--and unavoidably, the prestige of the judge's position--into account in considering the credibility of the recommendation. At the same time, it is well within the regular course of business for a prospective employer to require a letter of recommendation from a present or prior employer. It is, therefore, entirely appropriate for a judge to submit such a letter, so long as it is honest and limited to material relevant to a prospective employer.

Applying these considerations to the present inquiry, the requested letter may not be ethically submitted if such a letter is not required by the authority passing on the grant application, i.e., if it is just something the applicant thinks will “dress up his or her application packet. An appropriate letter of recommendation may be submitted by the judge if one or more letters of recommendation, from a class of persons of which the judge may fairly be regarded as a part, are required as part of the grant application. To stay within the regular course of business exception, any requirements of length, subject matter, submission by applicant with application packet versus direct mailing by the judge to the grant authority, etc. must be strictly observed. If the application calls for a listing of references, to include judges or others who have made referrals to the grant applicant, the judge may permit his or her name to be listed as a reference and may respond to any inquiry thereafter received, but should not submit an unsolicited letter. To prevent any later unauthorized use of his or her recommendation, any such letter should not be written to whom it may concern, but should be addressed to the grant authority and make explicit reference to the particular application in connection with which it is submitted. Finally, the text of the letter must qualify as an honest, business-quality reference based on the judge's personal knowledge, which will necessarily focus on the judge's past experiences with the grant applicant. The proposed text of the letter in issue runs afoul of the latter requirement both because it is too general (I appreciate and admire their work . . . .) and because it focuses on future support rather than past experience (I . . . . will continue to support their efforts at prevention [sic] and counseling of youth.)

In conclusion, while the intended letter may not ethically be submitted by the judge, an appropriate letter may be if such a letter is required by the grant authority from one or more persons from a class of which the judge may fairly be regarded as part.