SUBJECT: Whether or not a judge may testify in a proceeding
either voluntarily or after being subpoenaed
The inquiring judge anticipates that he may be asked to testify in a disciplinary proceeding conducted by the California Bar apparently regarding unauthorized practice of law. According to the inquiry, the subject of the California proceeding acted as "apparent in-house counsel" for a California corporation in a case pending in the inquiring judge's court, and filed various pleadings. The judge asks whether he may appear and testify voluntarily, and if not, whether he may appear and testify after certified mail service of a subpoena.
Canon 2B states, "a judge shall not testify voluntarily as a character witness." Canon 2B also provides, "a judge shall not lend the prestige of judicial office to advance the private interest of the judge or others. ..." Based upon these provisions, the Committee on Standards of Conduct Governing Judges has generally taken the position that where the testimony of a sitting judge is permissible, the judge should only testify pursuant to a subpoena.
In Opinion 90-2, the inquiring judge asked whether he might appear voluntarily to testify on Florida law at a civil trial to be conducted in England. The Committee found it "evident from your inquiry that you would not testify to any factual matter." The Committee concluded that the judge could not appear voluntarily to testify in the English court.
In Opinion 93-31, a judge asked whether he could appear in court pursuant to a subpoena to testify in a misdemeanor case in which the defendant is charged with unauthorized practice of law. The Committee found that the judge would not be appearing as a character witness or as an expert witness for a fee.
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 95-35, the inquiring judge sought a Committee opinion on whether she could be called as and 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.
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 subpoena. Accordingly, the rule would apply in the present case. The question of whether certified mail service of subpoena is sufficient raises a legal issue that should not be answered by this Committee.
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 judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions issued by the committee. Petition of the Committee on Standards of Conduct for Judges, 327 So.2d 5 (Fla.1976).
Dated the 21st day of January, 1997.
Charles J. Kahn, Jr.
Chairman, Committee on Standards of Conduct Governing Judges
Participation Members: Judges Cardonne, Dell, Green, C. Kahn, L. Kahn, Patterson, Rushing, Silverman, Smith, Tolton and Attorney Novicki
cc: All Committee Members
Office of the State Courts Administrator (name of judge deleted from this copy)