2014-23 (Emergency Staff Opinion issued December 3, 2014)
Impartiality; Appearance of Impropriety; Use of Office; Court Employees
Rules 1.2, 1.3, 2.11 & 3.4
Issue: May a Judicial Official serve on the interview panel for the selection of a municipal corporation counsel?
Additional Facts: The municipality has a significant number of pending court cases in Connecticut, involving a variety of legal issues (i.e. foreclosures, defective premises, motor vehicle accidents, false arrest, etc.).
Rule 1.2 states that a judge
should act at all times in a manner that promotes public confidence in the … impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
Rule 1.3 states “A judge shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others or allow others to do so.” Comments (2) and (3) to Rule 1.3 state as follows:
(2) A judge may provide a reference or recommendation for an individual based on the judge’s personal knowledge. …
(3) Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees by responding to inquiries from such entities concerning the professional qualifications of a person being considered for judicial office.
Rule 2.11(a) states that a judge
shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned ….
Rule 3.4 states that a judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it concerns the law, the legal system, or the administration of justice. In JE 2011-02, this Committee determined that
in order for a governmental committee or commission to qualify as one that concerns the law, the legal system or the administration of justice, ‘there must be a direct nexus between what a governmental commission does and how the court system meets its statutory and constitutional responsibilities – in other words, how the courts go about their business.'
While this Committee has not previously issued opinions concerning the propriety of a Judicial Official sitting on an interview panel, it has issued many opinions regarding the propriety of providing a recommendation. Given that the interview panel that the inquiring Judicial Official would serve on would make a recommendation concerning the best candidate for the position of corporation counsel, the Committee’s opinions regarding providing a reference or letter of recommendation, or providing a performance evaluation, are highly relevant to the current inquiry.
In JE 2009-15 at issue was the propriety of a Judicial Official providing references which essentially consisted of performance evaluations in response to form questionnaires for attorneys seeking contracts with the Commission on Child Protection to provide representation to children and indigent respondents in neglect and termination of parental rights proceedings in juvenile court. This Committee summarized its prior opinions in which it found that it was permissible for a Judicial Official to provide a reference or letter of recommendation. With respect to those activities, three of the conditions precedent to a Judicial Official serving as a reference or providing a letter of recommendation were that (1) the Judicial Official have personal knowledge of the candidate’s qualifications relevant to the job, (2) neither the candidate nor the hiring authority have cases pending or appearances before the judicial official at the time of the recommendation or for a reasonable period of time after submission of the recommendation, and (3) if the Judicial Official believed that recusal would be required in order to comply with the prior condition, and that recusal is likely to be frequent, the Judicial Official should not provide the reference or letter of recommendation.
More recently, in JE 2013-32, this Committee considered the propriety of a Judicial Official authorizing his or her name to be included as a reference by an Executive Branch employee who was applying for a position with a second Executive Branch agency. The employee or his or her agency regularly appeared before the Judicial Official. The Committee noted that generally it has concluded that a Judicial Official may provide references or recommendations subject to the following conditions:
- The recommendation should be based on personal knowledge of the applicant’s qualifications (see Rule 1.3 comment 2);
- The applicant is not a relative within the meaning of the Code or General Statutes § 51-39a;
- ) If the recommendation is furnished in writing on official letterhead, the Judicial Official should indicate that the recommendation constitutes the Judicial Official’s personal opinion (see Rule 1.3 comment 2);
- Persons/entities receiving the recommendation do not have cases pending before the Judicial Official at the time the recommendation is provided or for a reasonable period of time after the submission of the letter of recommendation; however, in JE 2012-27, the Judicial Official was permitted to provide a letter of recommendation for an applicant for a supervisory position in the Office of Public Defender Services even though the Public Defenders appeared before the Judicial Official, although the applicant did not appear and was not likely to appear if he or she received the new position;
- If the Judicial Official believes that recusal would be required in order to comply with condition (4) because his or her fairness would be impaired, and that recusal is likely to be frequent, the Judicial Official should not provide the letter of recommendation;
- The letter should be specific to the position being sought (see JE 2008-26);
- The Judicial Official may not provide a recommendation in adversarial proceedings (see JE 2008-15); and
- The Judicial Official may not provide a recommendation in connection with government employment that might suggest inappropriate political activity, but may be listed as a reference (see JE 2009-13 & JE 2011-19).
On the facts presented in JE 2013-32, the Committee advised the Judicial Official not to consent to the use of his or her name as a reference.
In addition to the foregoing opinions, this Committee has issued opinions regarding providing an evaluation of an attorney to an attorney rating organization. In JE 2013-40, the Committee determined that a Judicial Official may provide a reference for a law firm that had represented the Judicial Official in a matter subject to the following conditions:
- The Judicial Official has personal knowledge of the law firm’s qualifications that are relevant for inclusion in the Chambers guide;
- No member of the law firm is a relative of the Judicial Official within the meaning of the Code or C.G.S. § 51-39a;
- The Judicial Official indicates that the opinions expressed represent the personal opinions of the Judicial Official;
- No member of the law firm has an appearance before the Judicial Official at the time of the interview or for a reasonable period, under the circumstances, before or after the interview; and
- If the Judicial Official believes that recusal would be required in order to comply with condition (4) because his or her fairness would be impaired, and that recusal is likely to be frequent, the Judicial Official should not agree to serve as a
In JE 2013-40, the Committee distinguished its prior opinion involving a peer review rating for Martindale-Hubbell on the basis that such ratings were not confidential.
Based upon the facts presented, the Judicial Official was advised that serving on the interview panel for a municipal corporation counsel is inconsistent with Rules 1.2 and 1.3 because the Judicial Official would not have personal knowledge of all applicants and the municipality has a significant number of pending cases. In addition, the interview panel for a municipal corporation counsel is not a governmental commission concerned with the law, the legal system or the administration of justice as that term has been defined by the Committee and therefore service on the panel is prohibited by Rule 3.4.