FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-27
Date of Issue: September 14, 2012

ISSUES

May a judge-elect testify as an expert on attorney’s fees at an evidentiary hearing which had commenced while he/she was a candidate for judge but had been continued to conclude his/her cross-examination after the date he/she was elected to the bench?

ANSWER: Yes.

FACTS

Before election as a judge, the inquiring judge-elect was retained as an attorneys’ fees expert, reviewed the case file, provided an affidavit, and testified regarding the reasonableness of the attorneys’ fees at an evidentiary hearing on the subject.  The parties were unable to conclude the judge-elect’s testimony, so they interrupted his/her cross-examination and continued the hearing to a later time which, coincidentally, followed the judge-elect’s successful judicial campaign.  The judge-elect asks if he/she may appear at the continued hearing and conclude the testimony.

 

DISCUSSION

Canon 2A of the Florida Code of Judicial Conduct provides that “[a] judge … shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B provides, in relevant part:

A judge shall not lend the prestige of judicial office to advance the private interests … of others ….  A judge shall not testify voluntarily as a character witness.

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.  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.”  Although Canon 2B specifically deals with a judge acting as a character witness, there have been a number of  Committee opinions dealing with a judge testifying as a fact witness. Committee opinions have construed Canon 2B as requiring any testimony of a judge be pursuant to a subpoena, even if the proposed testimony is factual versus opinion.  See Fla. JEAC Ops. 99-4 and 04-37 (“A judge cannot voluntarily testify in any matter.”).

In Fla. JEAC Op. 04-37, the Committee opined that Canon 2B applied to a judge-elect who had been subpoenaed to testify at a deposition as an expert witness by the plaintiff in a legal malpractice case.  The plaintiff intended to use the deposition at a jury trial set to occur after the judge-elect assumed the bench.  The Committee acknowledged that a balancing test must occur which considers the extent to which the contemplated conduct is “necessary for a judge-elect to complete prior to assuming the bench, and those activities which are not necessary and which may lend the prestige of judicial office to a private interest.”  The Committee concluded the judge-elect could not give expert testimony at the deposition pursuant to a subpoena, “[s]ince the deposition in this matter is not an activity necessary for the judge-elect to perform prior to assuming the bench and the judge-elect’s testimony in the deposition will be used to advance the private interests of a litigant ….” (emphasis supplied).

The Committee advised a judge-elect in Fla. JEAC Op. 00-39 that the judge-elect could continue to appear before local judges between the time of his election and the time he assumed the bench, because the risk of misusing judicial prestige in such conduct did not outweigh “the important consideration of allowing a lawyer to effectively and expeditiously conclude legal matters that have been entrusted to the lawyer who has recently been elected to the bench.”

In Fla. JEAC Op. 03-06, a majority of the Committee agreed that the a judge could not appear in a videotape about the quality of life of the judge’s former karate student where the plaintiff’s attorneys in a personal injury action intended to show the videotape to the defendant automobile company during settlement negotiations but not during trial.  The Committee observed: “Ultimately, judges must accept that they are judges twenty-four hours each day.  Although the attorneys for the judge’s former student may want to use the inquiring judge in this video strictly because of the judge’s role as his former karate instructor, the judge nevertheless is voluntarily aiding this plaintiff in seeking compensation in an adversary process.” (emphasis supplied).  Contrasting this conclusion with its opinion in Fla. JEAC Op. 03-04, the Committee observed, “Giving non-testimonial interviews so that parties can determine what, if any, relevant information a judge has about a matter is far different than a judge voluntarily participating in a lawsuit by appearing in a videotape that will significantly aid one party or the other to advance his or her cause.” (emphasis supplied).

The Committee, in Fla. JEAC Op. 04-07, specifically receded from its earlier decision in Fla. JEAC Op. 95-35, a somewhat confusing opinion, in which the majority of the Committee seemed to conclude that the Code permitted a senior judge subject to recall to testify as an independent expert witness on attorney fees, so long as the judge was subpoenaed to do so.

The majority of the Committee believes the inquiring judge-elect is permitted to appear at the continuation of the evidentiary hearing and finish testifying regarding the reasonableness of attorneys’ fees in the case.  The majority notes that the judge-elect has concluded the direct testimony and part of the cross-examination and is merely finishing up the testimony on attorneys’ fees, the case likely will be concluded before the judge-elect takes the bench, the judge-elect was retained for the purpose of testifying as an expert witness on attorneys’ fees and did the vast majority of the work in advance of the election, there is no jury involved as there was in the scenario outlined in Fla. JEAC 04-37, and forcing the parties to “start over” on the attorneys’ fees issue would cause substantial prejudice in the way of additional expense and delay to the parties and the court.  The majority concludes that the judge-elect’s testifying at the continuation of the evidentiary hearing on attorneys’ fees is merely closing out the judge-elect’s practice before taking office – a classic “winding up” situation – one which is necessary for the judge-elect to complete before assuming the bench.

Based upon the foregoing, the Committee distinguishes this case from that described in Fla. JEAC Op. 04-37 and advises the inquiring judge-elect he/she may testify in the continuation of an evidentiary hearing as an expert on attorneys’ fees.

One member dissents and believes this inquiry is controlled by the Committee’s prior decisions in Fla. JEAC Ops. 04-37 and 03-06.

    

 

REFERENCES

Fla. Code Jud. Conduct Canons 2A and 2B; Commentary to Canon 2B.

Fla. JEAC Ops. 95-35, 99-4, 03-04, 03-06, 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 a 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. See 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. See Id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with the issue of whether the proposed conduct violates a provision of that Code.

For further information, contact the Committee Chair: Judge Jonathan D. Gerber, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

Participating Members:
Judge Roberto Arias, Robert T. Benton, II, Dean Bunch, Esquire, Judge Lisa Davidson, Judge Jack Espinosa, Jr., Judge Jonathan D. Gerber, Judge T. Michael Jones, Judge Barbara Lagoa,  Patricia Lowry, Esquire, Judge Richard R. Townsend, Judge Dorothy L. Vaccaro.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Justice Charles T. Canady
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator