May a judge voluntarily write a support letter for a litigant in a pending case?

Plain-English summary

The Commission addressed whether judges may voluntarily write letters supporting litigants in civil or criminal matters. It reviewed Rules 1.3, 2.10 and 3.3 and discussed In re Rice, a judicial-discipline case involving a magistrate’s contacts about charges against a family member.

The Commission concluded that a judge may not voluntarily write such a letter for a litigant in a pending or impending matter in any court or administrative venue. The holding includes disciplinary proceedings involving judges or lawyers as respondents.

In practice

The opinion extends the prohibition to civil, criminal and administrative matters, including judicial and lawyer disciplinary proceedings.

Common questions

Q: Does the rule cover administrative proceedings?

A: Yes. The Commission expressly includes any court or administrative venue.

Q: Does it cover discipline cases involving judges or lawyers?

A: Yes. The opinion specifically includes those proceedings.

Q: Is the issue limited to judicial letterhead?

A: No. The opinion bars voluntarily writing the support letter itself.

Background and rules framework

Rule 1.3 bars abuse of judicial prestige. Rule 2.10 restricts statements on pending or impending cases. Rule 3.3 bars vouching for a person’s character in a legal proceeding except when subpoenaed. The Commission read those provisions together and cited In re Rice.

Citations and references

West Virginia Code of Judicial Conduct:

• Rule 1.3 and Comment 1, abuse of judicial prestige.
• Rule 2.10(A)-(E) and Comments 1-2, judicial statements.
• Rule 3.3, character testimony.

Court rules:

• Rule 2.13(c) of the Rules of Judicial Disciplinary Procedure, Commission advisory opinions.

Cases:

• In re Rice, 200 W. Va. 401, 489 S.E.2d 783 (1997), magistrate contacts concerning a family member’s charges.

See also

• WV JIC Advisory Opinion 2021-02
• WV JIC Advisory Opinion 2021-04

Source

• Landing page: West Virginia Judicial Investigation Commission advisory opinions
• Original PDF: JIC Advisory Opinion 2020-25

Original opinion text

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

JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831

October 21, 2020

JIC ADVISORY OPINION 2020-25

Rule 2.13(c) of the Rules of Judicial Disciplinary Procedure gives the Judicial Investigation Commission the authority to promulgate advisory opinions on ethical issues pe1taining to the Code of Judicial Conduct. The Rule provides that "[t]he Commission may render in writing such advisory opinion as it may deem appropriate. Id.

This advisory opinion concentrates on the question of whether a judge may voluntarily write letters of suppott on behalf of litigants in any civil or criminal matter. To address the question, the Commission has reviewed Rules 1.3, 2.10 and 3.3 of the Code of Judicial Conduct which state:

Rule 1.3 - Avoiding Abuse of the Prestige of Judicial Office

A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.

Rule 2.10 - Judicial Statements on Pending and Impending Cases

A. A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court or make any nonpublic statement that might substantially interfere with a fair t1ial or heating.
B. A judge shall not, in connection with cases, controversies or issues that are likely to come before the court, make pledges, promises, or commitments that are inconsistent with the impa1tial performance of the adjudicative duties ofjudicial office.
C. A judge shall require court staff, cowt officials and others subject to the judge's direction and control to refrain from making statements that the judge would be prohibited from making by paragraphs (A) and (B).
D. Notwithstanding the restrictions in paragraph (A), a judge may make public statements in the course of official duties, may explain cou11 procedures and may comment on any proceeding in which the judge is a litigant in a personal capacity.

JIC Advisory Opinion 2020-25
October 2 l, 2020
Page 2 of3

E. Subject to the requirements of paragraph (A), a judge may respond directly or indirectly or through a third party to allegations in the media or elsewhere concerning the judge's conduct in a matter.

Ruic 3.3 - Testifying as a Character Witness

A judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when subpoenaed to testify.

(emphasis added).

Comment [ l ] to Rule 1.3 provides:

It is improper for a judge to use or attempt to use his or her position to gain personal advantage or deferential treatment of any kind. For example, it would be improper for a judge to allude to his or her judicial status to gain favorable treatment in encounters with traffic officials. Similarly, a judge must not use judicial letterhead to gain an advantage in conducting his or her personal business.

Comment [l] to Rule 2.10 states that the "restiictions on judicial speech are essential to the maintenance of the independence, integrity and impat1iality of the judiciary. Comment [2] notes that the rnle "does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity . . .. In cases in which the judge is a litigant in an official capacity, such as a writ of mandamus, the judge must not comment publicly."

The Supreme Court of Appeals of West Virginia addressed a similar issue in In re Rice, 200 W. Va. 401, 489 S.E.2d 783 (1997). A magistrate was charged, in part, with violating the fonner equivalent of Rule 1.3 for contacting the atTesting officer and the prosecutor's office about misdemeanor public intoxication and simple possession charges pending against his son-in-law without divulging the relationship. Specifically, the magistrate asked the officer if he could "help" the defendant. ln turn, the officer asked an assistant prosecutor to dismiss the charges. The magistrate also called the assistant prosecutor and asked about the validity of the police search. Thereafter, the charges against the defendant were dismissed with a note in the assistant prosecutor's file in which stated, "dismissed per officer's agreement per Magistrate Rice."

Following a heating, the Judicial Hearing Board ("JHB") found that the magistrate had violated the Code by contacting the officer and the prosecuting attorney reasoning that "the mere fact that contact was made presents the appearance that Mr. Rice attempted to utilize the prestige of his office to gain favor for a member of his family." Id. at 403, 489

nc Advisory Opi11ion 2020-25
October 2 1, 2020
Page 3 of3

S.E.2d at 785. The JHB recommended that Magistrate Rice be admonished. In adopting the recommendations of the JHB, the Supreme Court stated:

[I]t is improper for a judge to take advantage of his position to reap a personal benefit - or even to appear to do so .... [A] judge, whether on or off the bench, is bound to strive toward creating and preserving the image of the justice system as an independent, impa11ial source of reasoned actions and decisions. Achievement of this goal demands that a judge, in a sense, behave as though he is always on the bench

ld. at 404, 489 S.E.2d at 786 (citations omitted).

Based upon the foregoing, the Commission is of the op1ruon that it would be improper for any judge to voluntarily write a letter of supp011 on behalf of any litigants in any civil or c1iminal matter pending or impending in any cou11 or administrative venue. This would also include but not be limited to any disciplinary proceeding involving judges or lawyers as respondents. At all times judges should strive to remember that the standard for what constitutes abuse of power rests not with the final outcome but with the level of coercion acceptable to humankind. In other words, if it raises a hint of suspicion the conduct should be avoided at all cost.

Sincerely,

The Honorable Alan D. Moats, Chairperson Judicial Investigation Commission

AMO/tat