FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2003-04
Date of Issue: May 1, 2003

ISSUES

Whether it is proper for a judge to review documents about a matter in which the judge would be a fact witness before the judge is subpoenaed to give a deposition or court testimony.

ANSWER: Yes.

Whether it is proper for a judge to be interviewed by a lawyer about a matter in which the judge would be a fact witness before the judge is subpoenaed to give a deposition or court testimony.

ANSWER: Yes.

FACTS

The inquiring Judge tried a case during the Judge's last year in private practice which resulted in judgments for the Judge's client against some of the defendants but in favor of one defendant. That defendant had served an offer of settlement prior to trial. The prevailing defendant has a pending motion before a trial judge on an award of attorneys' fees. The client's present lawyer has sent the inquiring Judge copies of portions of the trial transcript, selected pleadings, and other papers which he has asked the inquiring Judge to review in advance of testifying on the issues of the reasonableness of the offer of settlement at the time it was rejected and the reasonableness of attorneys' fees in the case. The inquiring Judge understands that he or she will be subpoenaed to the hearing, but the inquiring Judge questions whether he or she can review the papers that were sent to him or her, and whether he or she can discuss his or her anticipated testimony with the lawyer who intends to subpoena the inquiring Judge for the hearing.

DISCUSSION

Canon 2B of the Code of Judicial Conduct provides that:

A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.

The Commentary to Canon 2B sets forth the reasoning for Canon 2B:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. 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.

In several opinions the Committee has interpreted Canon 2B to require that a judge be under subpoena whether the judge is testifying as a character witness or giving factual testimony. Florida JEAC Opinion 79-12 was the first of many opinions addressing the issue of a judge testifying as a witness. The Committee in Opinion 79-12 opined that absent a subpoena, a judge could not testify regarding the history and purpose of a statute that he or she had drafted as the general counsel for a state administrative agency. In Opinion 90-2, a judge was prohibited from voluntarily testifying at a civil trial that was to be conducted in London, England, on legal questions concerning Florida law. In Opinion 93-31, the judge was asked to testify in a misdemeanor case in which the defendant was charged with the unauthorized practice of law. The judge had been asked to testify by the state attorney's office about actions the judge took as an administrative judge and to explain to the jury the problems caused for the judicial system and parties by certain documents drafted and filed by the defendant. The Committee held that the judge could testify as long as he or she was under subpoena. In Opinion 95-32, the judge was permitted to testify in a bar grievance proceeding pertaining to a motion for disqualification made before the judge as long as the judge was properly subpoenaed. In Opinion 95-35, the inquiring judge sought a Committee opinion on whether the judge could testify as an independent expert witness in the area of attorney's fees. The Committee decided that the judge could testify if subpoenaed.

Each of the aforementioned opinions relied upon Canon 2B; however, the opinions did not specifically identify which part(s) of Canon 2B they relied upon.1 Canon 2B does not state that a judge cannot voluntarily testify as to factual issues; rather, it limits the proscribed conduct to voluntarily testifying as a "character" witness. However, Canon 2B also prohibits a judge from lending the prestige of judicial office to advance the private interests of the judge or others. Therefore, a judge voluntarily testifying as to factual issues is lending the prestige of his or her office to one side or the other in a disputed matter, and for that reason, the judge should not voluntarily testify as to factual matters.

Subsequently, the Committee has used Canon 2B requiring a judge to be under subpoena whether he or she is testifying as a character witness or about factual issues as a springboard to prohibit a judge from voluntarily giving non-testimonial statements. In Opinion 98-15, the inquiring judge asked the Committee whether a judge could provide a non-subpoenaed voluntary statement to authorities conducting a criminal investigation of another. In that case, the authorities contacted the inquiring judge and requested that the judge provide a voluntary statement pertaining to its criminal investigation of the judge's family friend. A majority of the committee, with three members dissenting, concluded that a judge may only provide a statement to the authorities when properly subpoenaed. In Opinion 00-07, the inquiring county judge had determined during a criminal suppression hearing that a police officer lied under oath. The officer's supervisor was conducting an internal investigation regarding the suppression hearing in which the officer lied under oath. The inquiring judge asked whether he or she could voluntarily speak with the supervising investigator absent a proper summons. The Committee relying on Canon 2B opined that the judge should not speak to the investigator without a subpoena.

The Committee at this time elects to overrule its opinions in 98-15 and 00-7. These opinions prevent judges from cooperating with entities such as law enforcement, the Florida Bar, and the Judicial Qualifications Commission when they are investigating matters. The Commentary to Canon 2B allows a judge to give information pursuant to a formal request to a sentencing judge or a probation or corrections officer. There is no difference in a judge giving information to an investigative entity upon a request and a judge giving information to a sentencing judge, a probation officer, or a parole officer upon request. In matters dealing with law enforcement, the judge could be viewed as obstructing justice if the judge refused to cooperate when he or she has relevant information and is requested to give this information. In matters dealing with investigations by the Florida Bar regarding attorney misconduct or the Judicial Qualifications Commission dealing with judicial misconduct, the judge has an ethical obligation to cooperate with these entities. See Fla. Code Jud. Conduct, Canon 3D(1), (2).

The Committee also finds that non-testimonial interviews about factual matters, as long as they are not in violation of any other parts of the Code of Judicial Conduct, do not require a subpoena. In the matter at hand, the Committee finds the Judge may be interviewed if he or she wishes by either or both sides in a civil case regarding issues that the Judge has firsthand knowledge of that may be relevant to a matter in litigation or that may potentially be in litigation. However, the Judge is not ethically obligated to permit either or both sides to interview him or her. As required by Canon 2B, if either side requires a sworn statement from the Judge at a deposition, a trial, or otherwise, the Judge is required to be under subpoena pursuant to Canon 2B since to do otherwise would be lending the prestige of judicial office to one side or the other in a matter.

The inquiring Judge in preparing for testimony may review files and documents relevant to this testimony just as any witness may do so before the witness testifies.

REFERENCES

Fla. Code Jud. Conduct, Canons 2B, 3D(1), (2).

Florida Judicial Ethics Advisory Committee Opinions: 79-12, 90-2, 93-31, 95-32, 95-35, 97-1, 98-15, 99-4, 00-7, 00-37

_____________

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 The Honorable Phyllis Kotey, Chair, Judicial Ethics Advisory Committee, Eighth Judicial Circuit, Alachua County Courthouse, 201 East University Avenue, Room 205, Gainesville, Florida 32601.

Participating Members:
Judges Davidson, Kahn, Kotey, May, Rodriguez, Silverman, Smith, Swartz, Thompson, Townsend, and Attorneys Gonzalez and 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)

1Unfortunately beginning with Opinion 97-1, the two separate and distinct proscriptions of Canon 2B, have become so entangled that the proscription against a judge voluntarily testifying as a character witness has also evolved to mean that a judge shall not voluntarily testify on factual issues. Fortunately, the holding of the ensuing opinions, such as Opinions 99-4 and 00-37, do not change.