Opinion 79-12

November 6, 1979

Dear Judge:

This is in response to your letter of August 15th, 1979. Eight members of the Committee on Standards of Conduct Governing Judges have, as of this date, furnished their opinion. Inasmuch as your testimony is required on November 13, 1979, I am responding today.

At one time you were the general counsel for a state administrative agency. As such, you drafted a statute, the validity of which is now in question. You are being asked to testify as to the history and purpose of the rule and, in particular, its connection with another statute.

I think it goes without saying that judges are not immune from subpoena. Five of the responding members indicated a subpoena should be required. They held that a judge could testify, but only in response to a subpoena. In addition, in our Opinion 76-9, we:

"...held that a Judge, formerly having been a practicing lawyer, may give an affidavit relative to matters exclusively within his knowledge pertaining to a case or proceeding in which he was involve as a lawyer, without the necessity of a subpoena. However, no compensation for the activity was contemplated."

However, two of our members, who voted that it was inappropriate for a judge to testify in the circumstances, raised the following disturbing questions:

You are being asked to testify on behalf of one other than your former client. Are you not being asked to delve into the work product of services you performed for the former client? Is there a question of attorney/client privilege here? Surely the director of the administrative agency at the time, or his deputies, are also privy to this information. Is the use of a present-day judge as a witness an attempt to garner the prestige of the office? Finally, should a judge not be concerned with the time spent away from his office giving testimony in a case of this type. These are questions that con perhaps only be answered by the inquiring judge, but nevertheless, questions that should be taken into account.

Yours truly,

James T. Carlisle, Chairman
Committee on Standards of Conduct Governing Judges

cc: All Committee Members
Sid White, Clerk of the Supreme Court
Florida Judicial Qualifications Commission
Florida Bar Journal
All references to the inquiring judge deleted

Participating members: Judges Booth, Carlisle, Haverfield, Hewitt, Richardson, Stephenson, Turner and Samuel Powers, Attorney