2004-03: Judge writing character reference on behalf of a judge against whom disciplinary proceedings are pending

Opinion No. 04-03

June 15, 2004

Topic: Judge writing character reference on behalf of a judge against whom disciplinary proceedings are pending.

Digest: A judge may not voluntarily write a letter to the Illinois Courts Commission in support of a judge against whom disciplinary proceedings are pending.

References: Illinois Supreme Court Rule 62B and accompanying Committee Commentary; In re Fogan, 646 So.2d 191, 193 (Fla. 1994); In re Anastasi, 388 A.2d 620 (N.J. 1978); Illinois Judicial Ethics Committee Opinion 95-12; Commentary to Massachusetts Supreme Judicial Court Rule 3:09, Canon 2B; Kansas Judicial Ethics Advisory Committee Opinion JE-103 (2000); Nevada Standing Committee on Judicial Ethics and Election Practices Opinion JE 04-004.

FACTS

A lawyer representing a judge as a respondent in proceedings before the Illinois Courts Commission has asked another judge to submit a letter to the Courts Commission on behalf of the respondent-judge. The letter would be in the nature of a character reference. While not addressing the incidents that form the basis of the charges, the letter would set forth the author’s familiarity with the respondent-judge and would contain a statement that the author has never known the respondent-judge to commit acts similar to those charged.

QUESTION

May a judge write a letter to the Illinois Courts Commission in support of a judge against whom disciplinary proceedings are pending?

OPINION

Illinois Supreme Court Rule 62B provides that "[a] judge should not testify voluntarily as a character witness." The rationale for the prohibition stated in Rule 62B is that a judge testifying as a character witness injects the prestige of judicial office into the proceedings and the testimony may be misunderstood to be an official testimonial on behalf of a party to the litigation. Committee Commentary to Rule 62B. Although Rule 62B does not specifically address the situation where "character testimony" is presented by way of letter rather than in person, the Committee has previously determined that the Rule’s prohibitory language is applicable to the voluntary submission of a character reference letter. IJEC Opinion 95-12. Courts and advisory bodies from other jurisdictions have reached the same conclusion. In re Fogan, 646 So. 2d 191, 193 (Fla. 1994) (a written statement bearing on the character of a defendant in a criminal proceeding injects the prestige of judicial office into that proceeding to the same extent as if the judge voluntarily testified); Kansas Judicial Ethics Advisory Committee Opinion JE-103 (2000) (Canon 2B prohibits writing a letter to another judge in support of a former client’s expungement request); Massachusetts Committee on Judicial Ethics Opinion 99-5 (judge prohibited from sending a letter to another judge on behalf of prospective adoptive parents).

Neither Rule 62B nor the Commentary to the Rule limit the prohibition against voluntarily testifying as a character witness to testimony before courts created by the judicial article of the Illinois Constitution. The prohibition is equally applicable to proceedings before other adjudicatory bodies such as the Illinois Courts Commission. See In re Anastasi, 388 A.2d 620 (N.J. 1978) (sending a letter to the state racing commission in connection with a licensing decision bearing witness to the license applicant’s good name and reputation violates Canon 2B); Commentary to Massachusetts Supreme Judicial Court Rule 3:09, Canon 2B ("adjudicatory proceedings include not only proceedings before courts but also before administrative agencies, including disciplinary bodies"); Nevada Standing Committee on Judicial Ethics and Election Practices Opinion JE 04-004 (writing a letter in support of a doctor in a disciplinary proceeding before a medical licensing board violates Canon 2B/.

The prohibition against voluntarily providing character testimony does not prevent a judge from submitting a written character reference in response to a formal request by the Courts Commission. See IJEC Opinion 92-12 (judge may provide a written character reference to a sentencing court if the judge receives a formal request from the court or probation or corrections official). However, a request by the respondent or the respondent’s attorney is insufficient. Id. Of course, if a judge is subpoenaed to testify at the proceeding the judge is not voluntarily providing character testimony and must comply with the subpoena. Committee Commentary to Rule 62B.