1. Defamation: This is the most significant legal risk. A letter of recommendation can be considered defamatory if it contains false statements of fact that harm the applicant's reputation. This means:
* Falsity: The statement must be untrue. Opinions, even negative ones, are generally protected, but presenting them as fact is risky. For example, stating "John is consistently late and unreliable" is different from stating "John was late to three crucial meetings and missed a project deadline." The latter presents verifiable facts.
* Publication: The letter must be communicated to a third party. Simply writing the letter isn't defamation; sharing it is.
* Damage: The false statement must have harmed the applicant's reputation. This could manifest as lost job opportunities, scholarship rejections, etc.
* Fault: The writer must have acted negligently or with malice (knowing the statement was false or with reckless disregard for its truth). Negligence is a lower standard to prove.
Mitigating Defamation Risk:
* Stick to the facts: Focus on observable behaviors and verifiable accomplishments. Avoid subjective opinions unless explicitly requested and clearly labeled as such.
* Be accurate: Double-check information before including it. If unsure, leave it out.
* Qualified privilege: This legal doctrine offers some protection if the letter is written in good faith and for a legitimate purpose (e.g., providing an honest assessment for a potential employer). However, this privilege can be lost if the writer acted with malice or recklessly disregarded the truth.
* Don't exaggerate or embellish: Avoid hyperbole. "Exceptional" or "best ever" are subjective and risky.
* Avoid vague statements: "I have some concerns" is unhelpful and potentially defamatory without specific details.
2. Misrepresentation: This involves making untrue statements that induce reliance by the recipient (e.g., the potential employer). While similar to defamation, it focuses on the recipient's reliance, not necessarily damage to reputation. For instance, falsely claiming the applicant possesses a specific skill could lead to a misrepresentation claim.
3. Discrimination: Letters of recommendation should not contain discriminatory remarks based on protected characteristics (race, religion, gender, age, disability, etc.). Even indirect or subtle biases can lead to legal problems. For example, focusing on personal characteristics unrelated to job performance or subtly implying a preference for a certain demographic could be problematic.
4. Privacy: Avoid including personal information about the applicant that is not relevant to the recommendation and isn't publicly known.
5. Confidentiality: Maintain confidentiality regarding the letter's content and the applicant's personal information.
In summary: When drafting a letter of recommendation, err on the side of caution. Focus on verifiable facts related to the applicant's abilities and performance, avoid subjective judgments unless clearly identified as such, and be mindful of potential biases. If you have doubts about your ability to write a fair and accurate letter, it is perfectly acceptable to decline the request.