2013-40 (September 9, 2013)
Recommendations; Lawyer Peer Review
Rules 1.2, 1.3 & 2.11
Issue: May a Judicial Official serve as a “referee” (i.e., reference) for a law firm that represented the Judicial Official in a few cases prior to his or her appointment to the bench? The reference would be submitted to Chambers and Partners (“Chambers”), a company that publishes rankings of law firms and lawyers by practice area for inclusion in its Chambers guides. Unlike Martindale-Hubbell, Chambers states that all interviews are confidential.
Additional Facts: Law firms that would like to be ranked in the Chambers guide are asked to provide a list of up to 15 “referees” to be contacted for a short interview about the firm’s work in the relevant practice area. A “referee” is usually a client but can be anyone who has knowledge of the firm. Interviews with referees are non-attributable and any quotes published by Chambers are anonymous. Chambers indicates that it takes care never to include a quote that will reveal the source. Law firms are ranked in bands from 1-6, with 1 being the best. The qualities on which rankings are assessed include technical legal ability, professional conduct, client service, commercial astuteness, diligence, commitment, and other qualities most valued by the client.
Discussion: Rule 1.2 of the Code of Judicial Conduct states that a judge “shall act at all times in a manner that promotes public confidence in the independence, integrity, and 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 that 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.” Comment (2) to Rule 1.3 notes that a judge “may provide a reference or recommendation for an individual based on the judge’s personal knowledge.” Comment (3) to Rule 1.3 specifically authorizes judges to respond to inquiries by appointing authorities and screening committees for judicial selection.
Rule 2.11 states that a judge “shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned” including, but not limited to, when the judge has a personal bias or prejudice concerning a party’s lawyer.
Based upon the information provided, including that interviews with referees are non-attributable and any quotes published by Chambers are anonymous and will not contain information that will reveal the source, the Committee determined that the Judicial Official may serve as referee, subject to the following conditions:
(1)The Judicial Official has personal knowledge of the law firm’s qualifications that are relevant for inclusion in the Chambers guide;
In rendering its decision, the Committee considered its prior opinions in JE 2009-05 (providing a letter of support for an attorney who was nominated to receive a professional service award from a private organization), JE 2011-17 (providing a peer review to Martindale-Hubbell not permitted because rater’s identity could be ascertained) & JE 2012-16 (completing a questionnaire about a lawyer who is being considered for inclusion in a highly selective international legal honorary society deemed to be analogous to providing a letter of support for an attorney as authorized by JE 2009-05).
(2) 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;
(3) The Judicial Official indicates that the opinions expressed represent the personal opinions of the Judicial Official;
(4) 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
(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 agree to serve as a “referee.”
Committee on Judicial Ethics