February 4, 2022 – Ohio judges may provide letters of recommendation for individuals so long as the letters are based on the judges’ personal, firsthand knowledge of the individuals and the letters are not an abuse of the prestige of their judicial office.
On December 10, 2021, the Ohio Board of Professional Conduct (the “Board”) issued Advisory Opinion 2021-12 regarding judges providing letters of recommendation for individuals. The Board concluded that a judge may properly provide a recommendation on behalf of the following: (1) an individual seeking employment; (2) a law school applicant; (3) someone seeking a nomination for appointment to the federal judiciary; and (4) an attorney applying for certification as an attorney specialist. In these instances, the letter of recommendation may be written on official court letterhead.[i]
Judges are often asked to prepare letters of recommendation by court employees, fellow judges, and others. However, the Ohio Code of Judicial Conduct prohibits a judge from “abusing the prestige of office to advance the personal or economic interests of others.”[ii] Avoiding the abuse of the prestige of judicial office requires a judge only to provide a recommendation or reference based upon the judge’s personal knowledge of the individual seeking the recommendation.[iii] “Personal knowledge” in this context means that the judge is more than an acquaintance of the requesting individual.[iv] Writing recommendations or providing references based upon personal knowledge also safeguards judges against the appearance of impropriety and undermining the integrity and impartiality of the judiciary.[v] Of course, a judge may also decline to provide a recommendation at his or her discretion.
Individuals seeking employment may request the recommendation of a judge who has personal knowledge of their skills, qualifications, job performance, and work product. According to the Board, “[a] judge’s firsthand knowledge of an individual under these circumstances outweighs concerns about a potential abuse of the prestige of office.”[vi] This is especially true where the judge is the current or former employer of a law clerk or other court employee. If a judge wishes to write a letter of recommendation on behalf of a current court employee seeking employment with a law firm or party to a case pending before the judge, the judge should screen the employee from working on that case.[vii] Beyond direct employer-employee relationships, a judge may also provide letters of recommendation for individuals that the judge personally knows through religious, civic, or educational organizations, individuals with whom the judge has longstanding personal relationships, or lawyers who regularly practice in the judge’s courtroom.[viii]
Judges are also permitted to write letters of recommendation on behalf of law school applicants. Though, the Board cautions that the requisite personal knowledge may be more difficult to obtain with a law school applicant, as the “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.”[ix]
Further, judges seeking appointment to the federal judiciary may ask other judges to recommend them and attest to their qualifications for federal judicial office. While Jud.Cond.R. 4.1(A)(3) prohibits judges from endorsing candidates for public office, this rule does not prohibit judges from providing recommendations to a screening committee or any other body vetting potential nominees for the federal judiciary because appointment to the federal judiciary is not subject to a contested election process.[x] Either the lawyer seeking appointment or the screening committee may request a judge’s letter of recommendation.
Finally, judges are permitted to respond to a certifying organization’s inquiry regarding a lawyer’s suitability to be certified as a specialist in a particular area of law. The Supreme Court Rules for the Government of the Bar of Ohio explicitly provide that whether a lawyer possesses competence in a specialized area of law may be demonstrated by “recommendation from attorneys or judges who are familiar with the competence of the attorney.”[xi]
Conclusion and Practical Takeaway.
An Ohio judge may provide a letter of recommendation on behalf of an individual, including a person seeking employment, a law school applicant, someone seeking a nomination for appointment to the federal judiciary, or an attorney applying for certification as an attorney specialist. The judge must have sufficient personal knowledge of the individual in order to assess his or her skills and qualifications for the position sought.
Ulmer’s Ethics & Professionalism and Professional Liability Practice Groups offer strategic advice to attorneys and law firms regarding their ethical obligations and defend them in critical matters involving disciplinary complaints, internal law firm disputes, and legal malpractice. With decades of experience handling these sensitive matters, Ulmer’s team of experienced attorneys helps clients confront these challenges so they can keep their focus on the practice of law. Please feel free to reach out to our attorneys if you have any questions.
The information provided in this bulletin speaks only to the information and guidance we have available as of the date of publication and is subject to change. We will continue to follow further issued guidance and regulations and endeavor to post those updates via our website. This legal update was created by Ulmer & Berne LLP, and is not intended as a substitute for professional legal advice. Receipt of this bulletin, by itself, does not create an attorney client relationship. For any questions, or for further information, please contact Alvin E. Mathews, Jr. at email@example.com.
[i] Ohio Board of Prof. Cond., Op. 2021-12, 4 (citing Jud.Cond.R. 1.3, cmt.).
[ii] Ohio Board of Prof. Cond., Op. 2021-12, 1–2 (citing Jud.Cond.R. 1.3).
[iii] Ohio Board of Prof. Cond., Op. 2021-12, 2 (citing Jud.Cond.R. 1.3,cmt.).
[iv] Ohio Board of Prof. Cond., Op. 2021-12, 2.
[v] Ohio Board of Prof. Cond., Op. 2021-12, 2 (citing Jud.Cond.R. 1.2).
[vi] Ohio Board of Prof. Cond., Op. 2021-12, 2.
[vii] Ohio Board of Prof. Cond., Op. 2021-12, 3.
[viii] Ohio Board of Prof. Cond., Op. 2021-12, 2.
[ix] Ohio Board of Prof. Cond., Op. 2021-12, 3.
[x] Ohio Board of Prof. Cond., Op. 2021-12, 3.[xi] Ohio Board of Prof. Cond. Op. 202-12, 4 (quoting Gov. Bar R. XIV, Sec. 3(A)(2)) (emphasis added).