FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2021-05
Date of Issue: June 9, 2021

ISSUES

Whether it is permissible for a senior judge to act as a compensated expert witness in a matter pending in a county other than the one the judge is currently eligible to preside?

ANSWER: No.

FACTS

The inquiring judge served as a circuit court judge for several decades and is currently certified by the Supreme Court as both a senior circuit court judge and mediator. Further, the judge remains on the list of available senior judges and is subject to recall. Recently, the judge has been asked to serve as a compensated expert witness in a civil matter pending in a county other than the one where the judge has presided for so many years.

 

DISCUSSION

Senior judges subject to recall must comply with all provisions of the Code of Judicial Conduct, except Sections 5C(2), 5E, 5F, and 6A. See “Application of the Code of Judicial Conduct,” found at the end of the Code of Judicial Conduct (“Code”), and Fla. JEAC Op. 06-02, 01-04 and 95-33 (senior judge subject to recall bound by Code of Judicial Conduct, except for sections identified above).

Canon 2A of the Code of Judicial Conduct provides that: “A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Canon 2B states

“A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.”

It is well settled and supported by numerous Judicial Ethics Advisory Committee (JEAC) opinions that the testimony of a sitting judge in any forum requires that the judge be under subpoena. Canon 2 and commentary to Canon 2B, Fla. Code Jud. Conduct; see also Fla. JEAC Ops. 90-2; 93-31; 95-32. However, these and other opinions largely dealt with witness testimony of judges related to character references, and not as financially compensated expert witnesses.

In Fla. JEAC Op. 04-37, this committee determined that a judge-elect could not serve as an expert witness in a legal malpractice matter to be tried after the judge had taken office, despite the fact the judge had been retained and was to be deposed before that date. The opinion noted that even though the judge in that matter had been subpoenaed and must comply with the subpoena,

“. . . the judge should take all legal steps to notify a presiding judge that giving expert testimony in a legal proceeding is precluded under the Code of Judicial Conduct. Notification to the presiding judge may require filing a motion for a protective order.”

That committee also went so far as to specifically recede from prior JEAC Op. 95-35 that implied a judge could serve as an expert witness as long as the judge was properly subpoenaed. This committee does take note of JEAC Op. 12-27 where a judge-elect was permitted to testify as an attorney’s fee expert in a trial taking place after the judge took office. However, that case is distinguished by the fact that the retention and testimony of the judge took place before the judge was even a candidate for office. The opinion reasoned that the risk of calling into question the prestige of the office was outweighed by the need for the judge to conclude the service to the client that was largely already completed by the time the judge was in office. To do otherwise caused undue hardship to the parties in the case. That opinion also took pains to recede from JEAC Op. 95-35.

Although a survey of past opinions both before and after JEAC Ops. 04-37 and 12-27 do not specifically address a senior judge serving as an expert witness in another county, the committee is not persuaded that these nuances would remove it from the prohibitions in Canon 2 and the prior opinions cited. Despite the exemption from Canon 6A addressing compensation and reimbursement in certain circumstances, nothing in the Code indicates that being compensated as an expert witness, albeit in a county separate from where the judge presides, would be allowed under the present facts described. As a result, the inquiring judge should not accept the retention as an expert witness while he is in his current status as a senior judge.

 

REFERENCES

Fla. Code Jud. Conduct, Canons 2A, 2B, 5C, 5E, 5F, and 6A.
Fla. JEAC Ops. 90-02, 93-31, 95-3295-33, 95-35, 01-04, 04-37, 06-02, 12-27.

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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 of the committee.   See Petition of the Committee on Standards of Conduct Governing Judges, 698 So. 2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualifications Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. See id.

The Committee expresses no view on whether any proposed conduct of an inquiring judge is consistent with substantive law which governs any proceeding over which the inquiring judge may preside. The Committee only has authority to interpret the Code of Judicial Conduct, and therefore its opinions deal only with whether the proposed conduct violates a provision of that Code.

Mark Herron, Esq., Judicial Ethics Advisory Committee Chair, Messer Caparello, P.A., Post Office Box 1701, Tallahassee, FL 32302 or JEAC@flcourts.org.

Participating Members:
Judge Michael Andrews, Judge Roberto Arias, Judge Nina Ashenafi-Richardson, Judge W. Joel Boles, Judge Miguel de la O, Judge James A. Edwards, Judge David Green, Mark Herron, Esquire, Judge Jeffrey T. Kuntz, Judge Matthew C. Lucas, Judge Michael Raiden, and Charles Reynolds, Esquire.

All Judicial Ethics Advisory Committee opinions, subject matter indices, and a search engine are available on the Sixth Circuit’s website at www.jud6.org under Opinions. Committee opinions and related finding tools are also accessible on the Florida Supreme Court’s website at www.floridasupremecourt.org as a secondary posting under Court Opinions.


Copies furnished to:
Inquiring judge (Name of the Inquiring Judge deleted)
Chief Justice Charles T. Canady, Justice Liaison
John A Tomasino, Supreme Court Clerk
All Committee Members
Alexander J. Williams, General Counsel of the J.Q.C.
Melissa Hamilton, Staff Counsel