May a judge recommend a lawyer who appears before the judge for a public defender contract?

Plain-English summary

A lawyer who appeared before the judge had applied to the Office of the Public Defender for a contract position. The judge understood that every applicant needed a judicial reference and asked whether writing one for this lawyer was permitted. Source: Opinion 12-06, p. 1

Rule 21-103 prohibits abuse of judicial prestige for someone's personal or economic interests, while its Comment 2 generally allows references based on a judge's personal knowledge. The committee said a letter here would help the Public Defender screen applicants without giving this applicant greater influence than another applicant with a judge's letter. Source: Opinion 12-06, pp. 1–2

The committee also found that writing this letter would not improperly affect the appearance of fairness and impartiality in a later case involving the lawyer. It cited Rules 21-202 and 21-100 in discussing that point. Source: Opinion 12-06, p. 2

In practice

The holding concerns a reference requested in the public defender's contract application process for a lawyer the judge knows. It does not treat the mere fact that the lawyer appears before the judge as making the reference impermissible. Source: Opinion 12-06, pp. 1–2

Common questions

Q: Does the letter advance the applicant's interests?

A: The committee acknowledged that it could, but said this letter did not abuse judicial office because the Public Defender wanted judges' information for screening and required a judicial letter from applicants. Source: Opinion 12-06, pp. 1–2

Q: Does the lawyer's appearance before the judge bar the reference?

A: No, on these facts. The committee found no improper effect on the appearance of the judge's fairness in cases involving that lawyer. Source: Opinion 12-06, p. 2

Background and rules framework

The committee applied New Mexico Code of Judicial Conduct Rule 21-103 and its Comment 2 on references grounded in personal knowledge. It also cited Rules 21-202 and 21-100 on fair and impartial judicial duties and public confidence in the judiciary. Source: Opinion 12-06, pp. 1–2

Citations and references

New Mexico Code of Judicial Conduct:

• Rules 21-103, 21-202, and 21-100; Comment 2 to Rule 21-103. Source: Opinion 12-06

See also

• NM Judicial Ethics Op. 14-08: Judicial Applicant Recommendation
• NM Judicial Ethics Op. 13-04: Legal Aid Grant Letter

Source

• Landing page: New Mexico judicial advisory opinions
• Original PDF: Advisory Opinion 12-06

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.

Advisory Committee on the Code of Judicial Conduct

Hon. James J. Wechsler, Chair
Hon. Kevin L. Fitzwater

Paul L. Biderman, Esq.

Prof. Robert L. Schwartz
Freddie J. Romero

June 19, 2012

Re: Judicial Advisory Opinion No. 12-06

You have asked the Advisory Committee on the Code of Judicial Conduct for an opinion as to whether you may write a letter of recommendation on behalf of a lawyer who appears before you. This lawyer has applied to the Office of the Public Defender to serve as a contract lawyer. You understand that the Public Defender requires all lawyers applying for a contract to submit a letter from a judge in

connection with their application.

Rule 21-103 NMRA of the Code of Judicial Conduct prohibits a judge from abusing the prestige of judicial office “to advance the personal or economic interests of the judge or others[.]” Comment 2 to Rule 21-103 provides the guidance that a judge may generally “provide a reference or recommendation for an individual based

on the judge’s personal knowledge.”

The Committee believes that the situation you describe is permitted by the Code. Although your writing on behalf of an applicant may be advancing the

interests of the applicant, you are not abusing your judicial office by writing the recommendation. The Public Defender wishes to screen its contract applicants and knows that judges have information that would be helpful in their screening process. Your letter would not have any greater influence because of your office than that of another judge on behalf of another applicant.

Nor does the Committee believe that your writing the letter would improperly bear on the appearance of your ability to be fair and impartial in any case involving the lawyer. See Rule 21-202 NMRA (“A judge shall uphold and apply the law and shall perform all duties of judicial office fairly and impartially.”); Rule 21-100 NMRA (“A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.”). It is within the public’s perception that the judiciary’s support of competent counsel for indigent defendants is best for the criminal justice system.

Very truly yours,

James J. Wechsler

Chair

JJW:ow

cc: Hon. Kevin L. Fitzwater
Hon. Freddie J. Romero
Paul L. Biderman
Professor Robert L. Schwartz