When may an Ohio judge write a letter of recommendation, and can the judge use court letterhead?

Plain-English summary

A judge asked the Board whether, and in what circumstances, the judge may write letters of recommendation. The Board concluded a judge may do so, with one controlling condition: the recommendation must be based on the judge's personal knowledge of the individual. Jud.Cond.R. 1.3 prohibits a judge from abusing the prestige of office to advance the personal or economic interests of others, and the comment to that rule treats personal knowledge as the safeguard against that abuse. The Board defined "personal knowledge" as knowledge gained through firsthand observation or experience, which it said means more than a mere acquaintance or occasional social interaction.

The Board applied that standard to four settings. A judge may recommend an individual seeking employment, and is especially well placed to comment on a current or former law clerk or court employee whose work the judge has observed; when the recommendation is for a current court employee seeking work with a law firm or a party to a pending case, the judge should screen that employee from cases involving the prospective employer. A judge may recommend a law school applicant, but only when the judge has adequate firsthand knowledge of the applicant. A judge may write a recommendation for a lawyer or judge seeking appointment to the federal judiciary; because that appointment is not a contested election, the letter is not a prohibited endorsement of a candidate for public office under Jud.Cond.R. 4.1(A)(3). And a judge may respond to a certifying organization's inquiry about a lawyer seeking certification as a specialist under Gov.Bar R. XIV, based on the judge's personal knowledge of that lawyer.

On letterhead, the Board concluded that in any case where the judge has the requisite personal knowledge, the letter may be written on official court letterhead.

In practice

Under this opinion, a judge's authority to write a recommendation turns on a single factor the opinion identifies: firsthand personal knowledge of the person recommended. Per the opinion, where that knowledge exists the judge may write the letter and may use court letterhead; where it does not, writing the letter risks abusing the prestige of office and creating an appearance of impropriety under Jud.Cond.R. 1.2. The opinion holds that a recommendation for a federal judicial nominee is not a prohibited endorsement of a candidate for public office, and that a judge recommending a current court employee to a prospective employer should screen that employee from cases involving the employer.

Common questions

Q: Can an Ohio judge write a letter of recommendation at all?

A: Yes. The opinion concludes a judge may provide a recommendation, provided it is based on the judge's personal knowledge of the individual, which the opinion defines as firsthand observation or experience, not mere acquaintance.

Q: May a judge use court letterhead for a recommendation?

A: Per the opinion, in any case where the judge possesses the requisite personal knowledge of the individual, the letter may be written on official court letterhead. Jud.Cond.R. 1.3, cmt. [2].

Q: Is recommending a federal judicial nominee an improper political endorsement?

A: No. The opinion concludes that because a federal judicial appointment is not a contested election, a recommendation to a screening committee does not constitute the endorsement of a candidate for public office prohibited by Jud.Cond.R. 4.1(A)(3).

Q: What should a judge do when recommending a current court employee?

A: The opinion states that when writing for a current court employee seeking employment with a law firm or a party to a pending case, a judge should screen the employee from participating in cases involving the prospective employer.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud.Cond.R. 1.2 (promoting confidence in the judiciary and avoiding the appearance of impropriety), Jud.Cond.R. 1.3 (avoiding abuse of the prestige of judicial office), and Jud.Cond.R. 4.1 (political and campaign activities). It also references Gov.Bar R. XIV, which governs certification of lawyers as specialists in Ohio.

Citations and references

Rules of Professional Conduct:

• Ohio Jud.Cond.R. 1.2 (confidence in the judiciary; appearance of impropriety)
• Ohio Jud.Cond.R. 1.3 and cmts. [2], [3] (abuse of the prestige of office)
• Ohio Jud.Cond.R. 4.1(A)(3) (endorsement of candidates for public office)

Other authority:

• Gov.Bar R. XIV, Sec. 3(A)(2) (certification of attorneys as specialists)
• Black's Law Dictionary (11th ed. 2019), definition of "personal knowledge"

See also

• Ohio BPC Op. 1987-008: Judge Writing a Book Foreword
• Ohio BPC Op. 2021-011: Judge Extrajudicial Teaching and Speaking
• Ohio BPC Op. 1986-002: Judge Teaching a University Class

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2021/12/Adv.-Op.-2021-12-Final.pdf

Original opinion text

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

OPINION 2021-12
Issued December 10, 2021
Withdraws Adv. Op. 1995-05, 1998-04

                Letter of Recommendation Provided by Judge

SYLLABUS: A judge may provide a letter of recommendation for an individual,
provided the letter is based on the judge’s personal knowledge of the individual for
whom the recommendation is written.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                OPINION 2021-12
                            Issued December 10, 2021
                       Withdraws Adv. Op. 1995-05, 1998-04

                  Letter of Recommendation Provided by Judge

SYLLABUS: A judge may provide a letter of recommendation for an individual,
provided the letter is based on the judge’s personal knowledge of the individual for
whom the recommendation is written.

QUESTIONS PRESENTED:

   1. May a judge provide a recommendation on behalf of an individual seeking
       employment;

   2. May a judge provide a recommendation on behalf of a law school applicant;

   3. May a judge provide a letter of recommendation on behalf of an individual
       seeking a nomination for appointment to the federal judiciary;

   4. Is it proper for a judge to provide a written recommendation for an applicant
       for certification as an attorney specialist when requested to do so by a certifying
       agency?

APPLICABLE RULES: Jud.Cond.R. 1.2, 1.3, 4.1

   OPINION:       Given their positions as elected and appointed public officials,

judges are often approached to write letters of recommendation or asked to serve as a
reference by court employees, judges, and others. When considering providing a letter of
recommendation, a judge must avoid abusing the prestige of office to advance the
Op. 2021-12 2

personal or economic interests of others. Jud.Cond.R. 1.3. A key requirement in avoiding
the potential for abuse of the prestige of office is the condition that any letter of
recommendation must be made based upon the judge’s “personal knowledge” of the
requesting individual. Jud.Cond.R. 1.3, cmt.[2]. A judge should carefully consider
whether a recommendation letter is being sought due to the judge’s personal knowledge
of the individual or if the request is an effort to take advantage of the prestige of the
judge’s office. In addition to a potential abuse of the prestige of office, writing a letter
without the requisite personal knowledge may give rise to an appearance of impropriety
because it undermines the integrity and impartiality of the judiciary. Jud.Cond.R. 1.2.

   “Personal knowledge” is defined as “knowledge gained through firsthand

observation or experience, as distinguished from a belief based on what someone else has
said.” Black’s Law Dictionary 11th Ed. (2019). In the context of a recommendation letter, a
judge’s personal knowledge of an individual should be based on more than a just a mere
acquaintance or occasional social interaction. Even when a judge possesses the requisite
personal knowledge, he or she may choose to decline to provide a letter of
recommendation.

Letter of Recommendation for Individuals Seeking Employment.

   A judge’s personal knowledge of the skills and qualifications of an individual,

opinions about his or her job performance, and observations of his or her work product
can greatly assist those persons considering the employment of the individual. A judge’s
firsthand knowledge of an individual under these circumstances outweighs concerns
about a potential abuse of the prestige of office. A judge is especially qualified as a past
or current employer of a law clerk or other court employees to gauge the professional
and intellectual capabilities when those individuals seek different employment. A judge
may also provide letters of recommendation for individuals for whom the judge has
gained the requisite personal knowledge through participation in religious, civic,
educational, or fraternal organizations or because of long-term personal relationships.
Additionally, a judge is well suited to provide a letter of recommendation for a lawyer
who practices on a regular basis in his or her courtroom and the judge has had an
opportunity to acquire personal knowledge of the lawyer’s legal acumen and trial skills.
Op. 2021-12 3

When writing a letter of recommendation for a current court employee who is seeking
employment with a law firm or party to a pending case, a judge should screen the
employee from participating in cases involving the prospective employer.

Law School Applicants

   Similarly, a judge’s recommendation on behalf of a law school applicant must be

based on firsthand and personal knowledge of the applicant. A judge’s interaction with
an applicant may be limited to interactions outside of a traditional employment setting,
and the opportunities to adequately assess the applicant’s skills and qualifications may
be less frequent. Thus, a judge must avoid writing a letter for a law school applicant
when the judge’s personal knowledge of the applicant is inadequate or nonexistent. To
do otherwise risks an abuse of the prestige of office.

Recommendation Letter for Judge Seeking Appointment to the Federal Judiciary

   Judges are in a unique position to comment on the qualifications of a nominee for

federal judicial office because they have either served with the nominee on the same court
or have observed the nominee in other professional settings. Because a lawyer is seeking
a lifetime appointment to the federal judiciary and is not subject to a contested election
process, a judge’s letter of recommendation to a screening committee or other body
responsible for vetting potential nominees does not constitute an endorsement of a
candidate for public office as contemplated and prohibited by Jud.Cond.R. 4.1(A)(3).
Consequently, a judge may prepare a letter of recommendation based on a request from
the potential nominee or from a screening committee or other entity. Jud.Cond.R. 1.3,
cmt. [3]. A judge may also permit his or her name to be included in the candidate’s
application as a reference to be contacted at the screening committee’s discretion. The
judge’s letter should be based on the judge’s personal knowledge of the candidate,
pertain only to those factors that are relevant to performance of judicial office, and avoid
any comparison of the lawyer to others seeking the nomination.

Recommendation for Lawyer Seeking Certification as a Specialist

   The certification of lawyers as specialists is permitted in Ohio. Gov.Bar R. XIV. In

order to be certified as a specialist, a lawyer must receive certification from an
organization that meets standards adopted by the Supreme Court of Ohio Commission
Op. 2021-12 4

on the Certification of Attorneys as Specialists. A certifying organization must determine
whether a lawyer possesses competence in an area of law as demonstrated by
“recommendation from attorneys or judges who are familiar with the competence of the
attorney.” Gov.Bar R. XIV, Sec. 3(A)(2). In the context of a certification of a specialist, the
judge may be asked to consider his or her personal knowledge of a lawyer’s advocacy
skills, ethical conduct, knowledge of the area of specialization, and oral and written
communication skills. A judge may respond to the certifying organization’s inquiry
based on his or her personal knowledge of the lawyer seeking certification. Jud.Cond.R.
1.3.

Use of Court Letterhead for Letters of Recommendation

   In all cases where a judge possesses the requisite degree of personal knowledge a

an individual, a letter of recommendation may be written on official court letterhead.
Jud.Cond.R. 1.3, cmt.[2].