FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2005-10
Date of Issue: August 15, 2005

ISSUES

May a senior judge, who periodically sits in the juvenile division and hears contested termination of parental rights cases, testify as an expert witness in a matter regarding a receiver’s fees?

ANSWER: No.

FACTS

A retired judge has requested the senior inquiring judge who presides over contested termination of parental rights cases, to testify as an expert witness regarding the retired judge’s request for receiver’s fees. The senior judge inquires whether it is permissible to do so.

DISCUSSION

Canon 2A of the Code of Judicial Conduct provides that: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Additionally, Canon 2B 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.” Thus, a sitting judge may not testify in any forum unless under subpoena to do so. See Fla. JEAC Ops. 90-2; 93-31; 95-32.

In JEAC Op. 04-37, the Committee concluded that Canon 2 applied to a judge-elect who had been retained as an expert witness prior to qualifying for election to the bench. The Committee held that the use of a video-taped deposition taken of the judge-elect for use after assuming his/her duties on the bench, would violate Canon 2. While the Committee agreed that a judge-elect should be permitted actively and expeditiously to resolve pending legal matters post election, the Committee concluded that a deposition that would be used to advance the private interests of a litigant after the judge-elect took the bench would be contrary to the intent of Canon 2B. In a footnote, the Committee noted that: “Judges subpoenaed to testify in a matter obviously must obey a subpoena, but the judge should take all legal steps to notify a presiding judge that giving expert testimony in a legal proceeding is precluded under the Code of Judicial Conduct.”

After extending the dictates of Canon 2 to a judge-elect in Fla. JEAC Op. 04-37, the Committee readdressed Fla. JEAC Op. 95-35 in which the majority of the Committee appeared to permit a senior judge “subject to recall to testify as an expert witness on fees.” The Committee specifically receded from that opinion.

The Committee concludes that Canon 2 precludes a senior judge from testifying as an expert witness in order to advance the private interests of another.

REFERENCES

Fla. Code Jud. Conduct, Canon 2, Commentary to 2B

Fla. JEAC Ops. 90-2; 93-31; 95-32; 04-37

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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 the judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and 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 Qualifications 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 Marjorie Gadarian Graham, Esq., Chair, Judicial Ethics Advisory Committee, 11211 Prosperity Farms Road, Oakpark, Suite D129, Palm Beach Gardens, Florida 33410.

Participating Members:
Marjorie Gadarian Graham, Esq., Judge Karen Cole, Judge Lisa Davidson, Ervin A. Gonzalez, Esq., Judge Michael Raiden, Judge Jose M. Rodriguez, Judge Leslie B. Rothenberg, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr., Judge Richard R. Townsend, Judge Dorothy Vaccaro.


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