Sunday, October 11, 2009

Judge As Witness

A recent opinion of the Massachusetts Judicial Ethics Committee addresses a subpoena issued to a judge in connection with work as a lawyer:

The prohibition against testifying as a character witness does not apply to a judge's testifying as a fact witness in an adjudicatory proceeding. As we said in Opinion 2001-2, where we held  that a judge could produce a factual affidavit in connection with a former client's parole hearing:

"Canon 2B's prohibition on voluntary proffers of character testimony does not prohibit signing or submitting to a tribunal an affidavit containing factual, material information about which the judge has percipient knowledge....That is particularly true when...the judge has particular knowledge of relevant matters that is unavailable from any other source." (Emphasis added.)

     Since your deposition testimony sought by Plaintiffs' counsel is not voluntary and you would be appearing pursuant to a subpoena, your testimony is treated differently under the Code. See  Opinions 97-2 and 98-6.  There, the Committee said not only that the judge could testify pursuant to a subpoena, but also that the judge was obliged to comply with a summons to testify.

     The committee concludes that your testimony concerning facts within your knowledge does not violate the Code of Judicial Ethics.  We note, however, several important caveats, the first of which is the obvious issue of attorney-client privilege.(2)  While it is not within this Committee's jurisdiction to render opinions on such matters, you should make certain that you either have the Husband's (your former client) waiver of the attorney-client privilege or you should obtain competent legal advice from your own counsel as to whether the privilege should be asserted by you on behalf of the former client. You should also separately satisfy yourself as to any legal obligation you may have to assert the privilege on behalf of the deceased client, the Wife.

     Secondly, as in other opinions that we have issued, we have advised that the judge take steps to ascertain whether the information sought may be obtained from some other source. In this case, it appears that you have through your attorney already done this and still your deposition is sought on the ground that you alone have percipient information sought by the litigants.

     Thirdly, should you conclude after consultation with your counsel and counsel for the former client, that the issue of attorney-client privilege has been resolved and you are prepared to testify, you should limit your testimony to facts within your knowledge. As we said in Opinion 2006-2, your testimony must be scrupulously true, accurate and complete. You should limit yourself to the facts and not engage in opinion as that might be perceived as lending the prestige of your office to your former client's cause. Furthermore, you should not strategize with your former client's current counsel or take steps to advance his cause as to do so would violate the prohibition in Section 4 G of the Code against your engaging in the practice of law. With these cautions in mind, the Committee concludes that your testimony would not violate the Code of Judicial Conduct.

(Mike Frisch)

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Hypothetically, if a family law judge writes a personal letter to the state attorney suggesting that a party that appeared at a hearing in a family case may be guilty of wiretapping charges and that party is ultimately charged with a felony "interception of oral communication" and that judge is subpoenaed and gives a deposition against that party in the felony case, shouldn't that same judge recuse himself automatically (or upon motion) from hearing any further matters pertaining to the family law proceedings based upon the appearance of bias and prejudice against the party reported as having committed felonious wiretapping activities?

Posted by: AnonymousDuetoFear | Aug 28, 2012 10:02:20 PM

Interesting. I just finished a trial where the judge told the jury, just after swearing in the expert of the other party, "I want you to know that Dr. X and I were cub scouts in the same troop growing up."

Seems to me that this constitutes testimony by the judge, and I am debating using it as the basis for my appeal. Have the panel members n opinion on this, and, more importantly, some case law? I can find none at all on point in Arkansas.

Jim Keever

Posted by: Jim Keever,M.D., J.D. | Jun 29, 2013 12:16:43 AM

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