FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-22
Date of Issue: June 10, 2004

ISSUES

May a judge prepare an affidavit of good character, pursuant to a subpoena duces tecum without deposition, on behalf of a lawyer pending disciplinary action with the Florida Bar?

ANSWER: No.

FACTS

The inquiring judge received a subpoena duces tecum without deposition from an attorney who is representing a lawyer facing disciplinary action by the Florida Bar. The subpoena requested an affidavit from the judge regarding the character, fitness to practice law, and rehabilitation of the lawyer. The lawyer sent the judge a letter requesting that the judge prepare such an affidavit and indicated that the subpoena would eliminate any appearance of impropriety.

DISCUSSION

Canon 2(B) of the Code of Judicial Conduct provides in part as follows:

.... a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others.....

.... a judge shall not testify voluntarily as a character witness.

The commentary to Canon 2(B) states that "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 (emphasis added)."

The Florida Supreme Court in 1994 issued a public reprimand to a judge who sent a character letter to the sentencing court on behalf of a criminal defendant. In Re: Abel, 632 So. 2d 600 (Fla. 1994). In adopting the 1994 Code of Judicial Conduct, the Supreme Court eliminated any confusion in the Abel opinion by stating, "Similarly, judicial letterhead must not be used for conducting a judge's personal business, although a judge may use judicial letterhead to write character reference letters when such letters are otherwise permitted under this Code." The Court went on to find that the Opinions of the Committee of Standards of Conduct Governing Judges in 88-19 (judge may not prepare a letter of recommendation on behalf of a disbarred attorney who is seeking readmission to the Bar), 75-18 (judge may not write a character reference letter to a Bar Grievance Committee in a disciplinary action), and 77-17 (a judge cannot voluntarily write a letter to the Parole and Probation Commission recommending parole), are all proper interpretations of the Canon. In Re Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 2004).

In opinion 94-15, the Committee on Standards of Conduct Governing Judges interpreted the Code of 1994, as it modified the Abel decision, setting forth the current status of character reference letters:

Except as specific circumstances might reflect misuse or to abuse the prestige of judicial office, a judge may write a recommendation letter on official court stationery, but may not write a voluntary character reference letter on behalf of persons involved in investigatory or adjudicatory proceedings where legal rights, duties, privilege, or immunities are ultimately determined.

Therefore, it is clear that Canon 2(B) precludes a judge from submitting character letters or affidavits on behalf of a person involved in a Bar disciplinary proceeding. However, it is also clear that a judge may testify, pursuant to subpoena, as a character witness.

This Committee does not believe that the provisions of the Code of Judicial Conduct that preclude submission of character affidavits in investigative or adjudicating proceedings can be circumvented by requesting that an affidavit be prepared and produced pursuant to a subpoena duces tecum without deposition. The Code only permits a judge to "testify" as a character witness, and this must be pursuant to subpoena. This Committee does not construe an affidavit to be testimony.

In Fla. JEAC Op. 03-04, this Committee stated that a judge had an ethical duty pursuant to Canon 3(D)(1) and 3(D)(3) of the Code of Judicial Conduct, to cooperate with the Florida Bar or the Judicial Qualifications Commission in dealing with investigations regarding attorney misconduct or judicial misconduct. However, this assistance, as it relates to the character of an attorney, should be limited to subpoenaed testimony or to providing information to the investigating entity upon its request.

This Committee is aware that judges are many times in a unique position to assist the factfinder in disciplinary proceedings against a lawyer. These types of proceedings could very well fall into the category of "unusual circumstances when the demands of justice require," so that a judge would not be required to discourage a party from compelling a judge to testify as a character witness. However, this does not justify testimony by affidavit or personal testimony without a subpoena.

REFERENCES

In Re: Abel, 632 So. 2d 600 (Fla.1994) In Re: Code of Judicial Conduct, 643 So. 2d 1037 (Fla. 2004)
Canon 2(B) and 3(D), Code of Judicial Conduct
Fla. JEAC Op. 75-18
Fla. JEAC Op. 77-17
Fla. JEAC Op. 88-19
Fla. JEAC Op. 94-15
Fla. JEAC Op. 03-04

_____________

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 Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Robert Benton, Judge Karen Cole, Judge Lisa Davidson, Judge Phyllis Kotey, Judge Melanie May, Judge Jose Rodriguez, Judge McFerrin Smith, III, Judge Jeffrey D. Swartz, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Ervin Gonzalez, Esquire, and Marjorie Gadarian Graham, Esquire.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)