The Commission has commented on this topic in various annual reports, as recently as last year. Insofar as the problem persists, it seems appropriate to do so again.
Section 100.2(C) of the Rules Governing Judicial Conduct mandates inter alia that a “judge shall not lend the prestige of judicial office to advance the private interests of the judge or others.”
Over the years, numerous judges have been publicly disciplined for improperly asserting the influence of judicial office and improperly communicating with fellow judges and others on behalf of criminal defendants or civil litigants. It may be personally difficult for a judge to deny the request of a relative or friend who asks for influence or ex parte help, but the judge is obliged to refrain from doing so.
Where the assertion of judicial influence may be manifested in a letter on court stationery from the judge to the person or agency over which influence is sought, it makes no difference that the letter may be marked “Personal & Unofficial.” That qualifying phrase cannot mask the identity of the sender as a judge.
In Matter of John B. Nesbitt, reported in this annual report, the Commission admonished a County Court Judge for using his judicial letterhead and envelope to send a letter to a local college program, challenging an administrative ruling concerning the judge’s son. Notwithstanding that the letter was marked “Personal and Unofficial,” its purpose was to invoke the prestige of judicial office for a private purpose. The Commission’s determination stated:
Respondent's judicial stationery lent particular clout to his statements that he had reviewed the matter, that he questioned the legal sufficiency of the school's procedures and that the school should consult an attorney. Using the words "Personal and Unofficial" does not diminish the undeniable impact of such a letter, which inevitably invokes the prestige of the judiciary. Respondent has acknowledged that his use of judicial stationery was intended to influence the recipient to give particular attention to his views simply because of respondent's judicial status. It was improper for respondent to inject his judicial status into a private dispute.
In Matter of Martin, 2002 Annual Report, a Supreme Court Justice wrote letters to two judges seeking leniency on behalf of defendants whose families he had known for many years.
In Matter of MacLaughlin, 2002 Annual Report, a town justice inter alia wrote to a local resident on judicial stationery and threatening legal action on alleged code violations that had not been charged against the individual.
In Matter of Romano, 1999 Annual Report, 93 NY2d 161 (1999), a town justice inter alia wrote to the town board on judicial stationery, criticizing local police officers with whom he was angry.
In Matter of McKeon, 1999 Annual Report, a Supreme Court Justice inter alia wrote on judicial stationery to the city’s law department, urging that the hiring of a particular woman be expedited.
In Matter of Engle, 1998 Annual Report, a town and village court justice wrote on judicial letterhead to a County Court Judge, seeking leniency for a defendant whom he knew personally.
In Matter of Hoag, 1997 Annual Report, a town justice who also worked for a local private club used judicial stationery to make complaints about several individuals who allegedly trespassed on club property.
In Matter of Freeman, 1992 Annual Report, a town justice wrote on judicial stationery to support the pistol permit application of a customer of his private business.
In Matter of Tyler, 1990 Annual Report, 75 NY2d 525 (1990), a town justice inter alia wrote three letters on judicial stationery in connection with personal disputes.
In Matter of Wright, 1989 Annual Report, a Supreme Court Justice inter alia wrote letters on judicial stationery in support of a friend’s lawsuit and employment application.
In Matter of Zapf, 1988 Annual Report, a town justice wrote a letter on judicial stationery attempting to coerce payment of a debt.
In Matter of Wordon, 1981 Annual Report, a town justice wrote a private collection letter on court stationery to an alleged debtor on behalf of a local hotel.
From 1978 to 1985, the Commission disciplined scores of judges, mostly town and village justices, for writing letters on court stationery to other judges, seeking favorable treatment for defendants in traffic (mostly speeding) cases.
In addition to the significant body of case law in this area, the Advisory Committee on Judicial Ethics has issued numerous opinions on the proper and improper uses of judicial letterhead.
For example, while a judge may write a reference letter on behalf of a law school or job applicant if the recommendation reflects the judge’s appraisal of the abilities of the applicant (Opinion 88-10), a judge may not voluntarily send a letter to the Probation Department on behalf of suspended court employee, but may respond to an inquiry from the Department concerning the defendant (Opinion 88-63). While a judge may submit an affidavit of good character for an applicant to the New York bar if it contains an accurate reflection of the judge’s opinion (Opinion 88-166), a judge should not write a character reference at the request of a criminal defendant, even if the defendant is the judge’s former law clerk (Opinion 89-04).
Where a judge has any doubt about the propriety of sending a particular letter, the prudent course would be to examine the case law and Advisory Opinions and request an opinion from the Advisory Committee.
From the 2003 Annual Report, pages 25-27.