FLORIDA SUPREME COURT

JUDICIAL ETHICS ADVISORY COMMITTEE

Opinion Number: 00-37
Date of Issue: November 29, 2000

ISSUES

WHETHER A MEMBER OF THE FLORIDA JUDICIAL ETHICS ADVISORY COMMITTEE MAY APPEAR AT A BAR PROSECUTION PROCEEDING AND PROVIDE EXPERT TESTIMONY RELATING TO THE CODE OF JUDICIAL CONDUCT AND JUDICIAL CAMPAIGNS AFTER RECEIVING A SUBPOENA.

ANSWER: Yes.

FACTS

The inquiring judge is a judicial member of the Florida Supreme Court's Judicial Ethics Advisory Committee. The Florida Bar is taking action against an unsuccessful judicial candidate who allegedly violated Canon 7 of the Code of Judicial Conduct during the course of the 1998 election cycle. The Bar's prosecutor has formally contacted the Committee member and has expressed a desire to compel the judge's attendance and expert testimony relating to Canon 7 and judicial campaigns. The prosecutor fully intends to subpoena the judge for this purpose. The inquiring judge questions whether it is ethically permissible for him/her to appear and provide expert testimony if subpoenaed by the Bar's prosecutor.

DISCUSSION

Canon 2B of the Code of Judicial Conduct provides, "A judge shall not testify voluntarily as a character witness." However, once properly summoned, the judge is permitted to testify. The Commentary to Canon 2B states:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies... A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness.[emphasis added]

A subpoena presented to a judge constitutes a proper summons. While Canon 2B directly addresses those situations in which the judge acts as a character witness, this committee has construed Canon 2B to require that any testimony required of a judge pe [sic] pursuant to a subpoena, regardless of whether the proposed testimony is factual or opinion. See Fla. JEAC Op. 99-4.

It is therefore ethically appropriate for the inquiring judge to comply with a subpoena by appearing and giving expert testimony in the Bar's prosecution. See Preamble to the Code of Judicial Conduct ("[The Canons and Sections of the Code] should be applied consistent with constitutional requirements, statutes, other court rules and decisional law and in the context of all relevant circumstances"); see also Fla. JEAC Ops. 99-4, 98-15, 97-1, 95-35, 95-32, 94- 40, 93-31, 91-5, 86-10, and 79-12. In rendering this advisory opinion, we are only addressing the ethically efficacy of complying with the subpoena. We are not providing an opinion on any of the legal issues which might arise during the course of the testimony.

REFERENCES

Florida Code of Judicial Conduct Preamble; Canons 2B and 7.

Florida Judicial Ethics Advisory Committee Opinions: 99-4, 98-15, 97-1, 95-35, 95-32, 94- 40, 93-31, 91-5, 86-10, 79-12.

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Charles J. Kahn, Jr., Chairman, Judicial Ethics Advisory Committee, 301 Martin Luther King, Jr., Blvd., Tallahassee, FL 32399-1850

Participating Members:
Judge Gisela Cardonne
Judge Lisa D. Kahn
Judge Phyllis D. Kotey
Judge Scott J. Silverman
Judge C. McFerrin Smith, III
Judge Jeffrey D. Swartz
Judge Emerson Thompson
Judge Richard R. Townsend
Marjorie Gadarian Graham

Copies furnished to:
Justice Peggy Quince
All Committee Members
All Members of the J.Q.C.
Office of the State Courts Administrator (Name of inquiring judge deleted from this copy)