October 25, 1995
Receded from in Opinion 04-37
PERSONAL AND CONFIDENTIAL
Retired Judge's ability to testify
as expert witness as to attorney's fees
In re: Committee on Standards of Conduct Governing Judges
Your Inquiry Dated August 22, 1995
You are a retired judge subject to recall. You inquire whether you may be called as "an independent expert witness in the area of attorneys fees to testify on behalf of an attorney seeking an award of fees in a case and/or on behalf of an attorney objecting to an award of fees (an/or multiplier) for opposing counsel?" You do not state whether you have been subpoenaed. You state your testimony will only concern fee issues and that you will not be vouching for the attorney or his or her work.
Canon 2B provides that a judge shall not testify voluntarily as a character witness and that a judge shall not lend the prestige of office to advance private interests. As stated in the commentary:
A judge must not testify voluntarily as a character witness because to do so may lend the prestige of 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 requires, a judge should discourage a party from requiring the judge to testify as a character witness.
As a senior judge subject to recall, you are not excused from the above-requirements. See, Application of the Code of Judicial Conduct (B).
The Committee is somewhat divided on your inquiry. Four of the responding members agree that if you have been properly subpoenaed, you will not run afoul of the above-provisions of the Code. If subpoenaed, you should do as directed by the presiding judge. If you have not been properly summoned, you cannot testify without violating the Code.
However, five of the responding members feel the real issue is not whether you must be subpoenaed to testify. Rather, they feel the issue is whether you, as a senior judge subject to recall, may serve as an independent expert witness. Of those members, only one concludes that you may accept such service:
The Code does not address this particular issue. That is probably, because this type of event amongst retired judges was not foreseen. In most cases, a judge when called to testify is not required to give his or her legal opinions. Usually, when a judge testifies it is either as a fact or character witness; and not as an "expert witness."
The other four members conclude that you cannot testify as an independent expert witness. As one member stated:
Since expert witnesses generally testify voluntarily pursuant to a business relationship between the witness and the attorney calling the witness, I don't think that the consideration about whether the judge has been subpoenaed or not is particularly relevant. I read her question as simply asking whether she can agree to be an expert witness, not whether she must testify if subpoenaed. If this is the question, the I would answer it in the negative. A judge should not (sic) more testify about the quantum of attorney's fees than she should testify about construction of a contract in a business case or performance of a lawyer in an attorney malpractice case.
The 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 judges, 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, 327 So.2d 5 (Fla. 1976).
Very Truly Yours,
Oliver L. Green, Jr., Chairman
Committee on Standards of Conduct
CC: All Committee Members
Office of the State Courts Administrator
(Name of judge deleted from this copy)
Participating Members:Judges Cardonne,Dell, Doughtie, Green, C. Kahn, L. Kahn, Patterson, Rushing and Silverman