A unanimous Florida Supreme Court decided Inquiry Concerning a Judge NO. 18-108 RE: Deborah White LaBora on November 15, 2018. It is worthy of consideration. Worthy, because the basic topic, letters of recommendation, is one which all judges face in some form. In this instance, the Judge was asked to write on behalf of a criminal defendant. However, the requests come in a variety of contexts, for employment, school applications, volunteer appointments and more. I have been asked for recommendation letters in various contexts and have been called upon to investigate several Code of Judicial Conduct allegations involving them.
In this case, the Judge is a member of the Miami-Dade County Court. She wrote "a character reference letter, on her official court stationery, on behalf of a criminal defendant awaiting sentencing in federal court." That was noticed by a reporter, and publicized in a local newspaper. The matter was investigated by the Florida Judicial Qualification Commission, which recommended a "public reprimand." The Supreme Court accepted and approved that recommendation. The Judge will travel to Tallahassee to appear before the Court for this reprimand.
The Court explained that such a letter violates both "Canons 1 and 2 of the Florida Code of Judicial Conduct." It accepted that "the judge did not intend to violate the Canons." The absence of intent is important in these Court analyses, as it decides what punishment is appropriate. However, it noted that "she did not take appropriate steps to inform herself about the propriety of sending such a letter." In support of imposing the reprimand as a sanction, the Court also noted her "heretofore unblemished service as a judicial officer."
The Court explained that "by writing and submitting a character reference letter, on her official court stationery," the Judge "failed to maintain the high standards of conduct necessary to preserve the integrity of the judiciary" (violating Canon 1). Furthermore, this activity "could potentially undermine public confidence in the integrity and impartiality of the judiciary (violating Canon 2A). Her advocacy also violated Canon 2B by creating "the appearance of impropriety and partiality by improperly lending the prestige of her office to advance the private interests of the defendant."
The Court explained that the object "of (judicial) disciplinary proceedings is not for the purpose of inflicting punishment, but rather to gauge a judge’s fitness to serve as an impartial judicial officer.” In that regard, the Court stressed the Judge's acknowledgment of the action, cooperation in the investigation, and admission of the Code violations.
So, in what circumstances may a judge write a recommendation letter? The Judicial Ethics Advisory Committee (JEAC) recently summarized the subject in Opinion Number: 2017-09. That opinion provides a volume of scenarios and discussion. All of the JEAC opinions can be searched in a database maintained by the Florida Sixth Judicial Circuit. A simple search for "recommendation letter" also provides guidance.
The JEAC in 2017-09 was asked if a judge could recommend a former, and recently deceased, bailiff in an effort to have his service in a local community recognized with the naming of a sports field in his honor. The JEAC concluded that such a letter was permissible. It noted the broad prohibition on such letters, but also "an exception for" particular letters:
"Although a judge shall 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."
From that exception, the JEAC noted multiple interpretations in which it has concluded a recommendation letter is not inappropriate if based upon personal knowledge:
letters of recommendation to a potential employer or commendation to an employee’s personal file, Fla. JEAC Op. 10-29,
applicant for law school fellowship, Fla. JEAC Op. 07-06,
applicant for law school, Fla. JEAC Op. 79-03,
letters of commendations, Fla. JEAC Op. 94-45,
to judicial nominating commissions, Fla. JEAC Ops. 86-02, 89-15, 91-28, 03-09,
to the Florida Department of Elderly Affairs acknowledging that a professional guardian has demonstrated competency, intended to be sent by the guardian seeking waiver of a competency examination, Fla. JEAC Op. 05-04.
The JEAC also provided clear examples of letters that judges "are not allowed by the judicial code to write":
for investigatory and/or adjudicatory proceedings where legal rights, duties, privileges, or immunities would be decided. Fla. JEAC Op. 94-45.
to the Department of Business and Professional Regulation where the privilege of obtaining a professional license would ultimately be determined, Fla. JEAC Op. 13-08,
in criminal sentencing proceedings, Fla. JEAC Op. 10-34;
recommending parole to the Parole and Probation Commission, Fla. JEAC Op. 77-17,
attorney disciplinary action by the Florida Bar, Fla. JEAC Op. 04-22,
to the Florida Bar in connection with disciplined lawyer seeking re-admission to the Bar, Fla. JEAC Op. 88-19,
to Clemency Board or Board of Bar Examiners, Fla. JEAC Op. 82-15,
for judge’s personal business interests or matters, Fla. JEAC Ops. 81-08, 92-02, 96-14.
I have concluded that the best answer to such requests is generally no. Any recommendation letter could potentially be interpreted as "improperly lending the prestige of judicial office to advance the private interests" of someone. More importantly, the Code's use of an "appearance of impropriety" standard is very broad and very subjective. Essentially, might any reasonable person perceive the writing of the letter as inappropriate?
If a judge elects to write a recommendation letter, the best advice includes (1) do not use judicial stationery, and (2) do not mention either the title "judge" or even judicial service in the letter. When I deliver that advice, I generally hear "but if they do not know I am a judge, what good does the letter do?" And, that is perhaps the point. If the letter brings value only because it says or implies judge, then maybe the only point of the letter is "lending the prestige of judicial office?"
Thus, the best advice is to decline all such requests. If the request is within one of the categories approved by the JEAC, then the second best response is to offer a letter on personal letterhead with no reference to judicial service. Any letter on official letterhead or mentioning judicial service merely opens the door to potential criticism or worse.
