Opinion No. 95-12

August 1, 1995

Topic: Judge writing a character reference on behalf of a defendant in a federal sentencing hearing.

Digest: A judge may write a character reference letter on behalf of a defendant for use at a sentencing hearing only if requested to do so by the sentencing judge or a probation or corrections officer.

References: Illinois Supreme Court Rule 62B (87 Ill.2d R.62B) and accompanying Committee Commentary; ABA Model Code of Judicial Conduct, Canon 2 (1990) and accompanying Commentary; In Re Fogan, 646 So.2d 191 (Fla. 1994); Opinion 89-73, Advisory Committee on Judicial Ethics (N.Y. 1989).

FACTS

A defense attorney asks a judge to write a letter in support of a defendant for use at sentencing hearing in federal court.

QUESTION

May a judge, at the request of a defense attorney, provide a character reference letter on behalf of a defendant for use at a sentencing hearing?

OPINION

No. A judge may not write a character reference letter on behalf of a defendant for use at a sentencing hearing at the request of the defendant's attorney.

Illinois Supreme Court Rule 62B provides that a judge "should not lend the prestige of judicial office to advance the private interests of others ... or testify voluntarily as a character witness." The Committee Commentary to Rule 62B explains that judges are prohibited from voluntarily testifying as a character witness because the judge's appearance and testimony would inject the prestige of judicial office into the proceedings and may be misunderstood as an official testimonial on behalf of a party to the litigation. While Rule 62B and the accompanying Committee Commentary do not directly address the situation where a judge sends a letter to a sentencing judge rather than testifying in person, the same rationale would seem to prohibit the voluntary submission of written character references. See In Re Fogan, 646 So.2d 191, 193 (Fla. 1994) (a written statement bearing on the character of a defendant in a criminal proceeding would result in injecting the prestige of judicial office into that proceeding to the same extent as if the judge voluntarily testified in the proceeding).

The Commentary to Canon 2B of the American Bar Association Code of Judicial Conduct (1990), supports the view that a judge cannot voluntarily provide a written character reference to a sentencing judge:

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. However, a judge must not initiate the communication of information to a sentencing judge, or a probation or corrections officer but may provide to such persons information for the record in response to a formal request (emphasis added).

The Committee believes that the construction placed on Canon 2B of the ABA Model Code of 1990 is equally applicable to the virtually identical language contained in Rule 62B. As a result, the Committee is of the opinion that a judge may not provide a written character reference on behalf of a defendant unless the judge receives a formal request from the sentencing court, or probation or corrections official involved in the case. The judge may not initiate the communication of information to a sentencing court at the request of a defendant or defendant's counsel. See In Re Fogan, supra, at 192 (judge improperly provided a reference letter where the defendant initiated the request for the letter and the probation officer simply agreed that the defendant could secure the letters if he wished); Opinion 89-73, Advisory Committee on Judicial Ethics (N.Y. 1989) (to write a letter at the request of the defendants or at the request of their counsel would constitute testifying voluntarily as a character reference which is prohibited conduct). However, nothing in Rule 62B would prohibit a defense attorney from asking a sentencing judge, or probation or corrections officer to request a character reference letter from a judge. If the sentencing judge or probation or corrections officer then makes a formal request of the judge, the judge may provide the letter.

A judge, of course, is required to testify in court as a character witness if the judge is served with a subpoena. See Commentary to Rule 62.