Could a Maine judge write a recommendation and use judicial letterhead?

Plain-English summary

The committee concluded that a judge could write a recommendation based on personal knowledge of the applicant. It read Canon 2B’s judicial prestige restriction in light of the advisory note permitting such personal references. Source: Opinion 98-3.

It warned that a letter to a litigant, a law firm, or a prosecutor’s office appearing before the judge could create pressure or raise impartiality concerns. The relationship between the judiciary and the addressee mattered to that assessment. Source: Opinion 98-3.

The committee permitted judicial letterhead when the judge knew the applicant through the court system, because the judicial connection would be disclosed in the letter anyway. It found letterhead inappropriate when the reference arose from a relationship unrelated to judicial office. It did not decide administrative letterhead policy. Source: Opinion 98-3.

Currency note

This opinion was issued in 1998 under Maine’s former Code of Judicial Conduct. The Maine Supreme Judicial Court replaced that Code effective September 1, 2015. Its analysis is historical; check the current Code before relying on the former canon numbers. Source: Maine Committee on Judicial Conduct 2022 Annual Report.

Common questions

Q: Could a judge write a recommendation?

A: Yes, if it rested on the judge’s personal knowledge of the applicant. Source: Opinion 98-3.

Q: When was judicial letterhead permissible?

A: The committee allowed it when the recommendation was based on knowledge obtained through the judge’s court position. Source: Opinion 98-3.

Q: What if the judge knew the person outside the court?

A: The committee found judicial letterhead inappropriate because the judicial position was irrelevant to that recommendation. Source: Opinion 98-3.

Q: Did the committee decide court letterhead policy?

A: No. It expressly limited its answer to the ethical implications. Source: Opinion 98-3.

Background and rules framework

The opinion applied former Maine Code of Judicial Conduct Canon 2B’s judicial prestige rule. It referred to the Code’s advisory note and judicial ethics opinions from Illinois, Maryland, and New York about personal recommendations and use of judicial letterhead. Source: Opinion 98-3.

Citations and references

Maine Code of Judicial Conduct:

• Former Canon 2B.

Other opinions cited:

• Illinois Judicial Ethics Committee Opinions 96-2 and 95-4; Maryland Judicial Ethics Committee Opinion 83; New York Judicial Ethics Opinions 93-129 and 88-53, on judicial references and apparent impartiality.

See also

• ME Judicial Ethics Op. 99-1: Estate Article Byline
• ME Judicial Ethics Op. 02-1: Trial Lawyers Fellowship

Source

• Landing page: Maine advisory-opinion index
• Original PDF: Opinion 98-3

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

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JUDICIAL ETHICS COMMITTEE Aus 03 1998
Advisory Opinion No. 98-3
Issued: July 28, 1998

Question: Do the provisions of the Maine Code of Judicial Conduct prohibit a judge from writing a letter of recommendation? If the judge is permitted to do so, may the judge use judicial letterhead?

Discussion: The Code does not prohibit a judge from writing a letter of recommendation if the judge has personal knowledge about the person who is the subject of the referral. Canon 2B forbids a judge from “lend[ing] the prestige of judicial office to advance the private interests of the judge or others. . . .” The Advisory Committee’s Note to Canon 2 adopts the analysis of the ABA Model Code, under which a judge can properly “serv[e] as a reference or writ[e] a letter of recommendation based on personal knowledge. . . .” This conclusion is typical of that reached in other jurisdictions. See, e.g., Illinois Judicial Ethics Committee Opinion No. 96- 2 (March 6, 1996); Maryland Judicial Ethics Committee Opinion 83 (January 4, 1980); New York Advisory Committee on Judicial Ethics Opinion 93-129 (December 9, 1993).

Despite this general notion, there may be limited circumstances where submission of a letter of recommendation may be improper. For example, if the prospective employer is a party to litigation pending before the referring judge, or if the letter is directed to a law firm or prosecutor's office which appears before that judge, the judge must closely evaluate the apparent effect of the reference. A letter of recommendation may create an appearance of pressure brought to bear on the prospective employer to act in accordance with the judge’s recommendations. It might also create an appearance that the hiring decision, in some other way, will have ramifications on the pending case. See Illinois Judicial Ethics Committee Opinion No. 95-4 (March 7, 1995); New York Advisory Committee on Judicial Ethics Opinion 88-53 (May 9, 1988) (judge’s letter of recommendation to a District Attorney's office “might appear to compromise the judge’s independence or impartiality and may seem coercive. . .”). Thus, in these types of circumstances, the judge must consider the relationship between the judiciary and the addressee in order to ensure that a recommendation will not compromise the judge’s

apparent impartiality or public confidence in the integrity of the judiciary.

While the Advisory Committee Note to the Maine Code of Judicial Conduct expressly excepts letters of recommendations from the Code’s prohibitions, the Note does not discuss the use of judicial letterhead. The Committee has concluded that the Code does not preclude use of letterhead if the basis for the judge’s recommendation flows from the judge’s position with the court system.1 If the judge knows the applicant through the Judicial Department (for example, as an employee of the clerk's office, as a law clerk, or even as a practicing attorney), then the judge’s letter would foreseeably mention that fact. A letter of recommendation is permissible only if based on the iudge’s personal knowledge, and the judge’s letter could be expected to set out the manner in which he or she came to know the applicant. Thus, because the judge’s position would be revealed in any event through a letter of recommendation permitted under Canon 2B, the mere use of official stationary would not further enhance the danger that the hiring decision would be affected by “the prestige of judicial office. . . .” See Illinois Judicial Ethics Committee Opinion No. 96-2 (March 6, 1996); New York Advisory Committee on Judicial Ethics Opinion 93-129 (December 9, 1993) (recommending that a letter on judicial letterhead include a disclaimer that it is “personal and unofficial”). On the other hand, if the basis for the reference is unrelated to the judge’s office, then use of letterhead is inappropriate because the judge’s position is irrelevant to the recommendation.

1This opinion, of course, does not address the administrative question of when, as a matter of policy, judicial letterhead may be used in this context. Rather, this opinion extends only to the ethical implications generated by letters of recommendation.