Recognized as overruled by Opinion 99-04

Opinion 76-9

May 11, 1976

Re: Canon 5B(2)

Dear Judge:

This is in response to your recent request for an advisory opinion on the following question:

"May a judge, formerly having been a practising (sic) lawyer, give an affidavit relative to matters exclusively within his knowledge pertaining the case, proceedings or matters relative to cases in which he was involved as a lawyer, which cases are yet pending; or must he decline unless subpoenaed for deposition or to appear in court?"

You indicated that as a practicing lawyer with a firm you handled a large number of probate cases which were of such a nature that fees were either fixed by the court or subject to approval by the court. You further indicate that some of these cases are yet pending and that you have been requested by the firm of which you were formerly a member to submit a list of services rendered and time devoted incident to a particular case.

A majority of the Committee, with one member dissenting, is of the opinion that the furnishing of an affidavit under the specific circumstances indicated is not prohibited by any provision of the Canons of Judicial Responsibility. In particular Canon 2B to which you refer and about which you are concerned relates specifically to the circumstance of a judge testifying "voluntarily as a character witness".

The Committee was of the view that this provision was not applicable to the specific fact circumstances outlined in your inquiry.

The dissenting member was of the opinion that you should decline to submit a list of services and time devoted unless subpoenaed for deposition or appearance in court.

We appreciate your interest and trust the foregoing will be of assistance to you.


Gerald Mager

Chairman, Committee on Standards of Conduct Governing Judges


Participating members: Hanlon, Hewitt, Kaney, Mason, Murphee, Stephenson and Thomas MacDonald, Esquire