February 14, 1995
After publication of this opinion, the Arkansas Supreme
Court amended the Commentary to Canon 2 (B)
of the Code of Judicial Conduct. That amendment
in effect overturned this opinion.
Judge John N. Fogleman
Circuit Judge
Second Judicial District
116 Military Rd.
Marion, AR 72364
RE: JEAC Opinion 95-01
Dear Judge Fogleman:
You have asked whether you may write a letter of
recommendation for a friend, and whether the letter may be written on judicial letterhead.
The governing rule is Canon 2(B), which states, in
part: "A judge shall not lend the prestige of judicial office to advance the private
interests of the judge or others. . . ." Likewise, in the Comment: "A judge must
avoid lending the prestige of judicial office for the advancement of the private interests
of others."
It is perhaps significant that the Comment to the
Arkansas Canon is different than the Comment to the Model Canon, which reads
"Similarly, judicial letterhead must not be used for conducting a judge's personal
business." The Arkansas Supreme Court rejected that language and substituted
"Similarly, judicial letterhead must not be used to gain a personal advantage or to
effect an economic advantage." See Per Curiam, February 1, 1993, 311 Ark. 669.
Apparently the Court is permitting judicial letterhead for the personal business of a
judge, as long as personal or economic advantage is not involved. However, this
modification does not address the use of judicial letterhead for the benefit of others.
A survey of advisory opinions from other
jurisdictions reveals the lack of a consensus: Judges may allow their names to be listed
as references (Louisiana 87-72). Letters may be written based on personal knowledge, but
not merely to lend the prestige of the judicial office to the applicant or candidate. (New
York 88-10). Some states require personal stationery (Louisiana 86-71), while others
permit judicial stationery provided the words "personal and unofficial" are
clearly noted. (New York 88-10). Some states permit judicial stationery for letters of
recommendation for law clerks and court personnel, but not for personal friends.
(Washington 86-12). Some states distinguish between letters of recommendation for
employment and letters of support for application to an educational institution (Maryland
77-56).
In our opinion the policy of the Canon is best
served by a clear line: judges may write letters of recommendation, but must do so on
personal stationery. Judges may permit their names to be used as references and may
respond to an inquiry on judicial letterhead.
Sincerely,
Howard W. Brill
For the Committee |
