Judge’s letter not judicial misconduct, panel rules

Character reference letters by judges seen as a grey area

Published on July 30, 2014

Call this case the law of the letter versus sticking to the letter of the law.
A character reference letter written in 2012 by provincial court Judge Harold Porter in support of a personal friend in trouble before the Law Society of Newfoundland and Labrador had raised the question of whether Porter had crossed ethical lines.

The matter was eventually sent to the Judicial Complaints Panel that ruled on July 18 of this year that while Porter made an error in judgment, he was not guilty of judicial misconduct.

The law society in December 2012 complained that Porter had used the prestige of judicial office in an attempt to influence the society’s independent tribunal for the purpose of benefiting his close friend, lawyer Robert Regular.

Regular had been found guilty of professional misconduct and was about to appear before a law society discipline tribunal for determination of his penalty.

On Nov. 1, 2012, Porter submitted the character reference letter to the tribunal. It was written on the letterhead of the Provincial Court of Newfoundland and Labrador and expressed an opinion on the appropriate sanction to be imposed on Regular.

“The letter was positive, and included the suggestion to the Law Society tribunal that a private reprimand would be the appropriate penalty for the lawyer,” it stated in the Judicial Complaints Panel ruling.

“The Law Society complained that the conduct of the judge in submitting the letter, and in subsequently attending the Law Society discipline hearing, had offended a number of ethical rules approved by the Judicial Council of the Provincial Court.”

In a Sept. 25, 2013 decision, a Complaints Review Committee found that there were reasonable grounds to believe that Porter had engaged in conduct that was the subject of the complaint filed by the law society.

The committee referred the complaint to the Judicial Complaints Panel which conducted a hearing in St. John’s on March 7 and May 20 of this year.

The law society had sought a finding of guilt, together with a reprimand and direction that Porter refrain from such conduct in the future.

The society claimed the Ethical Principles for Judges and the Code of Ethics adopted by the provincial court have established a standard for character reference letters and that Porter failed to comply with that standard.

Porter’s lawyer submitted that there is no ascertainable standard for such letters, that the common practice — as indicated by 80 character reference letters from judges entered as exhibits — illustrates that there is significant uncertainly about the accepted standard of conduct in this area.

The ruling noted that the complaint against Porter underlines that caution and restraint should be exercised whenever a judge is asked to provide a character reference letter.

“The inclusion in the reference letter of a recommendation on the disposition (the appropriate penalty to be imposed on the lawyer) was inappropriate and was an error of judgment by Porter,” the decision stated. “It was not judicial misconduct that is subject to sanction, in this context.”

The ruling noted there was no intent by Porter to test the limits of the ethical principles. It also noted that Porter has given an undertaking that he will never again send a letter of this type.

The complaint was dismissed.