Can an Ohio judge write letters of recommendation for law school applicants, the judge's law clerks, or candidates for a federal judgeship?

Plain-English summary

The Board addressed whether the Code of Judicial Conduct permits a judge to recommend individuals in three settings, framing the analysis around Canon 2B, which directs that a judge should not lend the prestige of the office to advance others' private interests or testify voluntarily as a character witness. The Board first concluded the character-witness prohibition applies to court proceedings, citing the Commentary and the Reporter's Notes, so it did not bar recommendation letters.

On law school applicants, the Board concluded there is no ethical basis to bar a recommendation when the judge has firsthand knowledge of the applicant's capabilities and character, citing permissive opinions from Pennsylvania, Florida, New York, and Kentucky. It cautioned that a judge should give such recommendations sparingly and only after deciding the recommendation is sought because of the judge's knowledge of the applicant, not solely for the prestige of the office.

On law clerks, the Board concluded a judge may recommend a clerk for attorney employment based on personal, day-to-day knowledge of the clerk's professional and intellectual capabilities, reasoning that the value of that firsthand knowledge outweighs the concerns, and adding that the judge should screen a recommended clerk from cases advocated by the prospective employer. On federal judgeship candidates, the Board concluded a communication to a judicial screening or nominating committee is not a prohibited public endorsement under Canon 7, distinguishing it from endorsing a candidate for elective office, and is proper if based on factual knowledge of the individual's ability and suitability and not sought solely to lend the office's prestige or as a political quid pro quo.

Currency note

The Ohio Board reports that this opinion was withdrawn by Advisory Opinion 2021-12 on December 10, 2021. Because it has been withdrawn, it is indexed here as research only and is not current guidance. The Board also flags it as a "Former CJC Opinion" interpreting the former Ohio Code of Judicial Conduct, which was superseded by the Ohio Code of Judicial Conduct effective March 1, 2009, and notes subsequent amendments to Canons 1 through 6 effective May 1, 1997.

This opinion issued in 1995. Treat this page as historical context, not current guidance. Verify against the current Ohio Code of Judicial Conduct and Opinion 2021-12 before relying on any specific provision mentioned here.

Common questions

Q: Could a judge write a recommendation for a law school applicant?

A: Yes. The Board concluded a judge may recommend an applicant to law school where the judge has firsthand knowledge of the applicant's capabilities and character, given sparingly and not solely to lend the prestige of the office.

Q: Could a judge recommend a law clerk for a job at a law firm?

A: Yes. The Board concluded a judge may recommend a clerk for attorney employment based on personal, day-to-day knowledge of the clerk's work, and added that the judge should screen the clerk from cases advocated by the prospective employer.

Q: Is recommending someone for a federal judgeship a prohibited endorsement?

A: No. The Board concluded that a recommendation to a judicial nominating or screening committee is not a public endorsement under Canon 7, distinguishing it from endorsing a candidate for elective office, if based on factual knowledge and not a political quid pro quo.

Background and rules framework

The opinion interprets the former Ohio Code of Judicial Conduct: Canon 2B (lending the prestige of office; voluntary character-witness testimony) and Canon 7, including Canon 7(A)(1)(b) (refraining from political activity and public endorsements inappropriate to judicial office).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Judicial Conduct Canon 2B, Canon 7, Canon 7(A)(1)(b)

Other authorities:

• E. Thode, Reporter's Notes to Code of Judicial Conduct (1973)

Other opinions cited:

• Columbus Bar Ass'n Op. 3 (1986); California Comm. on Judicial Ethics Op. 40; Georgia Jud. Qualifications Comm'n Ops. 9, 63; Louisiana Op. 71; Florida Ops. 75-18, 79-3, 86-2; New York Op. 88-10; Kentucky Op. JE-74; Pennsylvania Op. 86-5; Missouri Op. 133; Maryland Op. 28; Nebraska Op. 90-2

See also

• Ohio BPC Op. 1995-004: Judges Accepting Complimentary Law Books
• Ohio BPC Op. 1994-012: Judge Compensation for Teaching After the Honorarium Ban
• Ohio BPC Op. 1989-021: Judge Paid for Writing Legal Articles

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-95-005.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 95-5
Issued April 7, 1995
Withdrawn by Adv. Op. 2021-12
[Former CJC Opinion-provides advice under the former Ohio Code of Judicial Conduct which is superseded by the
Ohio Code of Judicial Conduct, eff. 3/1/2009.]

[Not Current- subsequent rule amendments to Canons 1 through 6, Ohio Code of Judicial Conduct, eff. May 1, 1997]

SYLLABUS: A judge may give a recommendation on behalf of an individual applying to law
school if the judge has firsthand knowledge of the capabilities and character of the applicant. A
judge may give a recommendation on behalf of a judicial law clerk applying for employment as an
attorney if the judge has personal, day to day, knowledge of the professional and intellectual
capabilities of the clerk. A judge may write a letter on behalf of an individual seeking appointment
to a federal judgeship if the recommendation is based on factual knowledge of the ability and
suitability of the individual. A judge should make such recommendations only on an individual
basis upon determination that the recommendation is not sought or based solely to lend prestige of
the office to advance the interests of the individual.

OPINION: Judges are held in high esteem. Thus, they are asked to give recommendations on
behalf of others. This opinion addresses whether the Ohio Code of Judicial Conduct permits a judge
to give recommendations on behalf of individuals applying to law school, judicial law clerks
seeking employment as attorneys, and individuals seeking appointment to federal judgeships. The
questions are as follows:

    1. May a judge give a recommendation on behalf of an individual applying to law
    school;

    2. May a judge give a recommendation on behalf of a judicial law clerk seeking
    employment as an attorney;

    3. May a judge write a letter of recommendation on behalf of an individual seeking
    appointment to a federal judgeship?

Introduction

Canon 2B of the Ohio Code of Judicial Conduct states that

    [a] judge should not allow his [her] family, social, or other relationships to influence
    his [her] judicial conduct or judgment. He [she] should not lend the prestige of his
    [her] office to advance the private interests of others; nor should he [she] convey or
    permit others to convey the impression that they are in a special position to influence
    him [her]. He [she] should not testify voluntarily as a character witness.

Op. 95-5 2

Under Canon 2, the ethical concerns regarding recommendations by judges would be as follows:
judges may be perceived as voluntarily acting as a character witness; judges may be perceived as
lending prestige of the office to advance the private interests of others; and judges may be creating
an appearance of impropriety.

Question One

   May a judge give a recommendation on behalf of an individual applying to law
   school?

The Board begins by dismissing the concern that recommendations by judges on behalf of an
individual applying to law school might be perceived as a judge improperly, acting as a character
witness. The Commentary to Canon 2B of the Code of Judicial Conduct implies that the
prohibition against acting as a character witness applies to court proceedings. As stated within the
Commentary,

   [t]he testimony of a judge as a character witness injects the prestige of his [her]
   office into the proceeding in which he [she] testifies and may be misunderstood to
   be an official testimonial. This Canon [Canon 2B.], however, does not afford him
   [her] a privilege against testifying in response to an official summons. (Emphasis
   added).

The Reporter's notes to the 1972 ABA Code of Judicial Conduct also imply that the prohibition
applies to testimony in court. "The committee finally concluded that the proper standard would
preclude a judge from being a volunteer character witness, but would not grant him a privilege to
refuse to testify if a party has taken steps to summon him officially." E. Thode, Reporter's Notes to
Code of Judicial Conduct 49 (1973). Thus, this Board interprets the prohibition regarding a judge
acting as a character witness as applying to testimony in court proceedings. This concern will not
be addressed further with regard to Questions One, Two, or Three.

Turning to other ethical concerns, it is undeniable that recommendations on behalf of persons
applying to law school may be perceived as conduct that advances the individual candidacy of an
applicant. It is also a reality that individuals may attempt to use the prestige of a judge's office to
advance their own interest.

Yet, other states have not found these ethical concerns insurmountable. For example, in
Pennsylvania, Florida, New York, and Kentucky a judge may write letters of recommendation for
applicants seeking admission to law school. See Pennsylvania Judicial Ethics Committee, Op. 86-
5, (1986)
Op. 95-5 3

(requiring personal knowledge of the applicant and satisfaction that it will not be perceived as
partisan political conduct, coercion, or use of judicial office for private advantage); Florida SupCt,
Comm. on Standards of Conduct Governing Judges, Ops. 75-18 (1975) (permitting letter regarding
background and character of law school applicant as long as the prestige of the judicial office is not
used to advance the person's interests) and 79-3 (1979) (permitting judge to write recommendations
for law school applicants, with minority of committee advising that recommendation be written
only if requested by the law school); New York, Advisory Comm. on Judicial Ethics, Op. 88-10
(1988) (permitting letter that reflects applicant's history or character if not written merely to lend
the prestige of the office to the applicant); Kentucky SupCt, Judicial Ethics Comm., Op. JE-74
(undated) (advising that public confidence in the integrity, independence, and impartiality of the
judiciary would not be impaired by such recommendations).

In this Board's view, there is no ethical basis for banning a judge from recommending an applicant
for law school when the judge has firsthand knowledge of an applicant's capabilities and character.
Nevertheless, a judge should use discretion. Factors to consider are whether a judge has a personal
acquaintance with and a firsthand knowledge of the background of the applicant. Other factors are
the motive of the applicant and the motive of the judge.

In deciding whether to recommend an applicant for admission to law school, a judge must decide
whether the recommendation is sought because of the judge's acquaintance with and knowledge of
the applicant or whether it is sought solely because of the prestige of the judge's office. The judge
must be vigilant against recommendations that are made solely for the purpose of personal or
political gain.

In conclusion, this Board advises that a judge may give a recommendation on behalf of an
individual applying to law school if the judge has firsthand knowledge of the capabilities and
character of the applicant. These recommendations should be given sparingly. A judge should
make such recommendations only on an individual basis upon determination that the
recommendation is not sought or based solely to lend prestige of the office to advance the interests
of the individual.

Question Two

   May a judge give a recommendation on behalf of a law clerk seeking employment as
   an attorney?

This question raises two ethical concerns. One concern is that a recommendation given by a judge
on behalf of a judicial law clerk may be perceived as lending the prestige of the office to
Op. 95-5 4

advance the interest of the judicial law clerk. The other concern is that there may be an appearance
of impropriety if a judge recommends a judicial law clerk for employment with a law firm when
the firm's attorneys are serving as counsel in a pending case before the judge.

Yet, there is value in permitting such recommendations. A judge is in a position to have unique
insight regarding the professional and intellectual capabilities of a judicial law clerk. Thus, many
states permit recommendations of judicial clerks, albeit within certain limitations. For example, in
California, a judge may give a recommendation for his or her law clerk since knowledge of the
clerk gained in the course of official duties does not inject the prestige of office simply for private
advantage. See California Comm. on Judicial Ethics, Op. 40 (1988). In Georgia, a judge may
write a letter of recommendation for employment if the character and capabilities of the clerk are
well known to the judge; however, the recommendation might be improper if the letter is directed
to an employer who has a case pending before the judge or if the prestige of the office is the
important factor. Georgia, Judicial Qualifications Comm’n, Op. 9 (1977). In Louisiana, judges
may write letters of recommendation for employment on behalf of their law clerks only in response
to requests from employers. Louisiana SupCt, Comm. on Judicial Ethics, Op. 71, (1986). In Ohio,
an ethics committee advised that a lawyer may use a federal magistrate as an employment reference
when the lawyer's experience with the magistrate was job related--such reference does not lend the
prestige of the office to advance the private interests of others. Columbus Bar Ass'n, Op. 3 (1986).

It is this Board's view that the value of the judge's firsthand knowledge of the judicial clerk's
professional and intellectual capabilities outweighs the potential concern of lending the prestige of
the office to advance the interests of the clerk and creating an appearance of impropriety. These
potential concerns can be avoided. The judge should make recommendations based only on
firsthand knowledge of the clerk's work performance. Further, if a judge is recommending a
judicial clerk for employment, the judge should screen that clerk from participating in any case
being advocated by the prospective employer.

In conclusion, it is the Board's opinion that a judge may give a recommendation on behalf of a
judicial law clerk for employment as an attorney if the judge has personal, day to day knowledge of
the professional and intellectual capabilities of the clerk. A judge should make such
recommendations only on an individual basis upon determination that the recommendation is not
sought or based solely to lend prestige of the office to advance the interests of the clerk.
Op. 95-5 5

Question Three

   May a judge give a recommendation on behalf of an individual seeking appointment
   to a federal judgeship?

The last issue in this opinion is whether it is proper for a judge to recommend an individual for
appointment to a federal judgeship. Once again, there are several ethical concerns that must be
considered. One ethical concern is whether a letter of recommendation constitutes a public
endorsement under Canon 7. The broad mandate of Canon 7 is that "A Judge Should Refrain From
Political Activity Inappropriate to Judicial Office." Canon 7 (A) (1) (b) specifically prohibits an
incumbent judge or a candidate for judicial office from publicly endorsing a candidate for public
office. The prohibition in Canon 7 (A) (l) (b) extends to public endorsements of candidates for all
public offices, including judicial office. E. Thode, Reporter's Notes to Code of Judicial Conduct 95
(1973).

In this Board's view, a state court judge's recommendation to a nominating committee regarding an
individual seeking a federal judgeship is distinct from a judge's recommendation to the public to
support an individual seeking elective office within the state. Thus, a state court judge's
communication with a judicial screening committee regarding a judicial federal appointment is not
considered a prohibited public endorsement within the meaning of Canon 7.

The other ethical concern to be addressed is whether such recommendation creates an appearance
of impropriety or the improper lending of the prestige of a judicial office to advance private
interests under Canon 2. As discussed in Questions One and Two, these concerns can be
eliminated if the judge has sufficient knowledge of the individual on which to base the
recommendation and the judge is satisfied that the recommendation is not sought solely to use the
judge's office to advance interests of the individual. A recommendation should not be a blanket
endorsement, but should be based upon individual knowledge of the individual.

Thus, in answer to Question Three, this Board advises that a judge may write a letter on behalf of a
individual seeking appointment to a federal judgeship if the recommendation is based on factual
knowledge of the ability and suitability of the individual and it is not sought or based solely to lend
prestige of the office to advance the interests of the individual. In addition, the recommendation
should not involve a political quid pro quo.

In so concluding, this Board joins with other states in permitting such recommendations. See e.g.,
Florida, Sup.Ct, Comm. on Standards of Judicial Conduct, Ops. 86-2 (1986) (advising that
communication with a judicial nominating
Op. 95-5 6

commission regarding a person whose application is pending does not constitute a public
endorsement, has no bearing an the promotion of public conscience or the integrity and impartiality
of the judiciary, and does not involve undue influence, but should be limited to factual statement of
the person so that the commission may be allowed to draw its own conclusion); Georgia, Judicial
Qualifications Comm’n, Op. 63(1984) (permitting a judge to write letters of recommendation to a
screening committee for judicial appointment, if the letters only involve the judge's knowledge of
the applicant); Missouri, Comm’n on Retirement, Removal & Discipline, Op. 133 (1987)
(permitting a judge to write a letter to a screening committee for judicial appointment). See also,
Maryland, Judicial Ethics Comm., Op. 28 (1975) (advising that a judge may not write a voluntary
letter of recommendation on behalf of a candidate to be considered for judicial appointment to the
district court since it is analogous to the judge's support of a candidate for election to judicial office,
but may write a letter if asked for by the Judicial Selection Commission); and Nebraska, Ethics
Advisory Comm., Op. 90-2 (1990) (permitting a judge to furnish a requested letter of
recommendation and or answer any questions from any governmental agency responsible for
recommending judicial appointments if the communication is not revealed to the applicant).

Summary of conclusions

In conclusion, this Board advises that a judge may give a recommendation on behalf of an
individual applying to law school if the judge has firsthand knowledge of the capabilities and
character of the applicant. A judge may give a recommendation on behalf of a judicial law clerk
applying for employment as an attorney if the judge has personal, day to day, knowledge of the
professional and intellectual capabilities of the clerk. A judge may write a letter on behalf of an
individual seeking appointment to a federal judgeship if the recommendation is based on factual
knowledge of the ability and suitability of the individual. A judge should make such
recommendations only on an individual basis upon determination that the recommendation is not
sought or based solely to lend prestige of the office to advance the interests of the individual.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.