Opinion Number: 99-4
Date of Issue: January 28, 1999

WHETHER A JUDGE MAY EXECUTE AN AFFIDAVIT RELATING TO MATTERS WITHIN HIS KNOWLEDGE PERTAINING TO A CASE HE HANDLED WHILE IN PRACTICE?

Whether a judge may execute an affidavit relating to matters within his knowledge pertaining to a case he handled while in practice?
ANSWER: No.

A former client of the inquiring judge has been criminally charged with workers' compensation fraud. The attorney now representing the former client has drafted an affidavit for the inquiring judge to sign. The inquiring judge believes that "the affidavit is substantially correct."

This affidavit would be given to the Assistant Statewide Prosecutor handling the prosecution of the case. The attorney believes that an affidavit from the inquiring judge may help in resolving the case. The affidavit explains why certain steps were taken by the inquiring judge during the course of representing the former client. The affidavit also comments on the former client's good character.

The inquiring judge asks if signing the affidavit would be a violation of the Judicial Code of Conduct.

The proposed affidavit contains factual statements regarding work that the inquiring judge performed for the former client and it also contains opinions regarding the good character of the former client.

Canon 2B of The Code of Judicial Conduct specifically forbids a judge from voluntarily testifying as a character witness. A judge may testify if subpoenaed. 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."

In Opinion 91-5 the inquiring judge asked whether he could testify on behalf of his son-in-law before The Florida Bar Examiners regarding his fitness to be admitted into The Florida Bar. The Committee responded that the inquiring judge could not voluntarily testify, but could do so if done in response to a subpoena or an official inquiry or invitation from the Board of Bar Examiners.

In Opinion 94-40 the Committee held that a judge could testify as a character witness for a physician before a medical disciplinary board if he testified pursuant to a properly executed subpoena. See, also, Opinion 86-10 (a judge could appear on behalf of a suspended Florida Bar member seeking reinstatement if in response "to a subpoena issued for the aforementioned purposes") and Opinion 82-15 (absent an official inquiry, a judge could not write voluntary character reference letters to the Clemency Board and the Board of Bar Examiners on behalf of an individual seeking a pardon and admission to the Bar examination)¹.

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.

The most comprehensive opinion regarding a judge giving factual testimony in a proceeding is found in Opinion 97-1. The opinion sets forth many of the opinions on this issue. In the Opinion the Committee stated: "The tenor of the pending inquiry suggests that the inquiring judge will be called solely as a fact witness concerning the potential question of unauthorized practice of law. Accordingly, his testimony is permissible. Committee opinions have construed Canon 2B as requiring any testimony of a judge be pursuant to a subpoena. Accordingly, the rule would apply in the present case." (emphasis added)

In Opinion 79-12 the inquiring judge was asked to testify before a state administrative agency regarding a statute the inquiring judge had drafted when he was the general counsel for a state administrative agency. The validity of the statute was in question, and the inquiring judge was asked to testify as to the history and purpose of the rule and its relationship with another statute. A majority of the Committee held that the inquiring judge could testify only in response to a subpoena.

In Opinion 95-32 the inquiring judge sought advice as to whether he was obligated to provide testimony in a bar grievance proceeding somehow connected to a motion for recusal made in the case before him. The Committee advised that under Canon 2B, voluntary testimony would be prohibited. The majority of the Committee decided that the inquiring judge could testify if properly summoned.

In Opinion 93-31 the Committee found that a judge's appearance as a witness for the State in a misdemeanor case was permissible since he was properly subpoenaed.

In Opinion 95-35 the inquiring judge sought a Committee opinion on whether she could be called as an independent expert witness in the area of attorney's fees. A slim majority of the Committee decided that the judge could testify if subpoenaed, although four of the responding members felt that a judge could not testify as an independent expert witness.

See also Opinion 98-15, where the Committee found the judge could not provide a voluntary statement pertaining to a criminal investigation of the judge's family friend. The authorities contacted the inquiring judge during a criminal investigation of the judge's friend. The judge believed that he had facts that could exculpate his friend. A majority of the committee believed that the judge could only provide a statement if properly subpoenaed. A minority of the Committee believed that there was a difference between a judge appearing in a formal proceeding and giving testimony and cooperating with an investigative body.

The Committee notes that the preceding Opinions would overrule this Committee's prior Opinions in 76-9 and the implied holding in 90-2.

In 76-9 a majority of the Committee found that a judge could execute affidavits pertaining to the services he rendered and the time he spent on probate cases that he had handled when he was practicing law with a law firm. The Committee found that Canon 2B referred to testifying voluntarily as a character witness; Canon 2B did not apply to giving affidavits as to services rendered and time spent on cases a judge handled as a lawyer.

In Opinion 90-2 the Committee is asked whether a judge might appear voluntarily to testify on Florida law at a civil trial to be conducted in England. The Committee stated that it was evident from the judge's inquiry that he would not be testifying to any factual matter. Therefore the Committee concluded that the judge could not appear voluntarily to testify in the English Court. The opinion seems to indicate that if the judge was going to testify about factual matters then he could appear voluntarily without being under subpoena to testify.

In conclusion, the proposed affidavit submitted by the inquiring judge is in conflict with Canon 2B. The judge should not execute an affidavit in this matter. The inquiring judge may testify in a proceeding if he is subpoenaed to do so.

Florida Code of Judicial Conduct 2B.

Florida Judicial Ethics Advisory Committee Opinions: 98-15, 97-1, 95-35, 95-32, 94-40, 93-31, 91-5, 90-2, 86-10, 82-15, 79-12 and 76-9.

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 Lisa D. Kahn, Chair, Judicial Ethics Advisory Committee, Harry T. and Harriette V. Moore Justice Center, 2825 Judge Fran Jamieson Way, Viera, Florida, 32940-8006.

Participating Members: Judges Cardonne, Dell, C. Kahn, L. Kahn, Patterson, Rodriquez, Rushing, Smith, Swartz, Tolton and Attorney Blanton.

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

¹A judge may be subject to disciplinary proceedings if an improper character reference letter is written. See In re Ward, 654 So.2d 549 (Fla. 1995), In re Fogan, 646 So.2d 191(Fla. 1994); In re Stafford, 643 So.2d 1067 (Fla. 1994); and In re Abel, 632 So.2d 600 (Fla. 1994).