2012-16 (June 1, 2012)
Rules 1.2, 1.3, 2.1 & 2.11
Issue: May a Judicial Official complete and submit a questionnaire about a lawyer
who is being considered for inclusion in a highly selective international legal honorary society (hereinafter Society)?
Additional Facts: The facts presented included that the lawyer has appeared before the Judicial Official
in the past and it is likely that the lawyer or a member of the lawyer’s firm will appear before the Judicial Official
in the future (although currently no case is pending before the Judicial Official involving the lawyer or his or her firm);
there is a multi-stage process for admission into the Society; until a lawyer under consideration for membership is
recommended for approval by the Board, at which time he or she is asked to provide additional personal information,
the Society’s rules state that the lawyer is not to be advised, directly or indirectly, of his or her nomination;
the Society notes that all information gathered is confidential and an essential part of the admission process is
to obtain information from judges before whom the candidate has appeared; and members of the Society include civil
and criminal lawyers, as well as those who represent plaintiffs and defendants. In addition, the questionnaire basically
asks a limited number of questions, many of which can be answered “yes” or “no” or by checking a box. Based upon the
responses that the Judicial Official would provide, the Judicial Official would not be requested to provide any additional
information or explanation.
Response: Rule 1.2 requires a judge to act in a manner that promotes public confidence in the
impartiality of the judiciary and to avoid impropriety as well as the appearance of impropriety. Rule 1.3 prohibits
a judge from using or attempting to use the prestige of judicial office to advance the personal or economic interests
of the judge or others or to allow others to do so. Judges are permitted, however, to provide letters of reference or
recommendation based on the judge’s personal knowledge. Rule 2.1 states that the judicial duties of a judge take
precedence over all of the judge’s personal and extrajudicial activities, while Rule 2.11 requires a judge to disqualify
himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned including, but not
limited to, occasions when the judge has a personal bias or prejudice concerning a party’s lawyer.
Based upon the information provided, including that there will be no public disclosure of the completed questionnaires
or summaries of questionnaires and that the lawyer did not submit the name of the Judicial Official who will complete
the questionnaires and will not be provided with information regarding the Judicial Official, the Committee unanimously
determined that completing the questionnaire under review was analogous to providing a letter of support for an attorney
as authorized, subject to conditions, by JE 2009-05.
The Committee specifically determined that this inquiry was not
analogous to completing a peer review for Martindale-Hubbell, which was prohibited in opinion
JE 2011-17. Therefore,
the Judicial Official may complete and submit the questionnaire subject to the following conditions: (1) the Judicial
Official has personal knowledge of the candidate’s qualifications that are relevant to membership in the Society, (2)
the candidate is not a relative of the Judicial Official within the meaning of the Code or C.G.S. § 51-39a, (3) the
Judicial Official indicates that the opinions expressed represent the personal opinions of the Judicial Official, (4)
neither the nominated attorney nor members of his or her law firm or the Society have an appearance before the Judicial
Official at the time the questionnaire is provided or for a reasonable period, under the circumstances, before or after
the submission of the questionnaire, and (5) 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 submit the questionnaire.