FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2012-38
Date of Issue: December 14, 2012

ISSUE

May a part-time civil traffic infraction hearing officer testify as an expert witness in a non-traffic proceeding?

ANSWER: Yes. While an Article V judge cannot be retained to testify as an expert witness (even under subpoena), a civil traffic hearing officer may testify as an expert witness for compensation in non-traffic matters on non-traffic subjects (whether or not under subpoena.)

FACTS

The inquiring “civil traffic infraction hearing officer . . . [who] has an active civil/real estate law practice” has been asked to testify as an expert in a construction lien foreclosure action.  Attorney’s fees are at issue in the foreclosure proceeding, which is pending in the same circuit in which the hearing officer presides.  The hearing officer anticipates testifying as to the reasonableness of attorney’s fees for legal services rendered in the foreclosure matter.

The inquiring hearing officer expects to appear “voluntarily (without a subpoena) and will be paid an expert witness fee, all or a portion of which may be taxed against the opposing party.”  According to the inquiring hearing officer, the pending case is not related in any way to any civil or criminal traffic case.  The inquiring hearing officer reports that the curriculum vitae to be tendered as an exhibit would not mention being a traffic hearing officer.  The inquiring hearing officer does not plan to testify to this fact either.

    
DISCUSSION

“A judge shall not lend the prestige of judicial office to advance the private interests . . . of others.”  Fla. Code Jud. Conduct Canon 2B.  Canon 2B of the Code of Judicial Conduct specifically forbids a judge from testifying voluntarily as a character witness, although a judge may testify, even as to character, if subpoenaed. Canon 2B’s Commentary explains:

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.

“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.” Fla. JEAC Op. 12-27 (citing Fla. JEAC Ops. 99-4 and 04-37) (“A judge cannot voluntarily testify in any matter.”).

While not a judge, a civil traffic infraction hearing officer is subject to the Code of Judicial Conduct in important respects.  But a civil traffic infraction hearing officer “is not required to comply with Section 5C(2), 5D(2) and (3), 5E, 5F, and 5G, and Sections 6B and 6C.”  Application of the Code of Judicial Conduct, Section A(1).  Hearing officers and traffic magistrates should avoid, for example, any practice of law that could result in a conflict of roles, or cause an erosion of the “public confidence in the integrity and impartiality of the judiciary.” Fla. Code Jud. Conduct Canon 2A.  On the other hand, the JEAC and its predecessors have “not suggested in the past and [the JEAC] does not wish now to suggest, that a part-time traffic magistrate may not practice law at all in the same circuit where the magistrate presides.”  Fla. JEAC Op. 00-35.

In Fla. JEAC Op. 02-10, stating that Canon 7 applied to Traffic Court Hearing Officers, we wrote:  “The statutory provisions of § 318.36 Florida Statutes and the provision of Rule 6.630(I) Florida Rules of Traffic Court both recognize a limited application of the Code of Judicial Conduct to Traffic Hearing Officers” (quoting Fla. JEAC Op. 03-09).  “Section A(2) of the Application provision to the Code of Judicial Conduct states that a civil traffic infraction hearing officer ‘should not practice law in the civil or criminal traffic court in any county in which the civil traffic infraction hearing officer presides.’ This Committee has advised that a part-time civil traffic infraction hearing officer may continue to practice law in the same circuit where the hearing officer presides as long as the practice does not include traffic matters and appeals of traffic matters. See Fla. JEAC Op. 00-35. Therefore, as long as the part-time traffic hearing officer does not handle any county court traffic matters or any appeals from traffic court cases, the hearing officer may represent clients in civil matters before the county judge.”  Fla. JEAC Op. 12-28(amended).

The restrictions on a part-time civil traffic infraction hearing officer’s appearance as an expert witness should mirror or parallel the restrictions on a part-time civil traffic infraction hearing officer’s practice of law.  As long as the civil traffic infraction hearing officer does not testify in any county court traffic matter or participate in any way in any other traffic case, we find no impropriety in the civil traffic infraction hearing officer’s testifying as an expert witness on non-traffic matters.

    
REFERENCES

Fla. Code Jud. Conduct Canons 2A, 2B, Commentary to Canon 2B, and Application of the Code of Judicial Conduct, Section A.
 
Fla. JEAC Ops. 12-28(amended), 04-37, 03-09, 02-10, and 00-35.

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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, Chair, Judicial Ethics Advisory Committee, Fourth District Court of Appeal, 1525 Palm Beach Lakes Boulevard, West Palm Beach, Florida 33401.

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