Monday, September 17, 2012
The Florida Judicial Ethics Advisory Committee has a recent opinion on the ethics of a judge testifying as an expert when retained prior to his election as a judge:ISSUES
May a judge-elect testify as an expert on attorney’s fees at an evidentiary hearing which had commenced while he/she was a candidate for judge but had been continued to conclude his/her cross-examination after the date he/she was elected to the bench?
Before election as a judge, the inquiring judge-elect was retained as an attorneys’ fees expert, reviewed the case file, provided an affidavit, and testified regarding the reasonableness of the attorneys’ fees at an evidentiary hearing on the subject. The parties were unable to conclude the judge-elect’s testimony, so they interrupted his/her cross-examination and continued the hearing to a later time which, coincidentally, followed the judge-elect’s successful judicial campaign. The judge-elect asks if he/she may appear at the continued hearing and conclude the testimony.
The Committee's reasoning:
The majority of the Committee believes the inquiring judge-elect is permitted to appear at the continuation of the evidentiary hearing and finish testifying regarding the reasonableness of attorneys’ fees in the case. The majority notes that the judge-elect has concluded the direct testimony and part of the cross-examination and is merely finishing up the testimony on attorneys’ fees, the case likely will be concluded before the judge-elect takes the bench, the judge-elect was retained for the purpose of testifying as an expert witness on attorneys’ fees and did the vast majority of the work in advance of the election, there is no jury involved as there was in the scenario outlined in Fla. JEAC 04-37, and forcing the parties to “start over” on the attorneys’ fees issue would cause substantial prejudice in the way of additional expense and delay to the parties and the court. The majority concludes that the judge-elect’s testifying at the continuation of the evidentiary hearing on attorneys’ fees is merely closing out the judge-elect’s practice before taking office – a classic “winding up” situation – one which is necessary for the judge-elect to complete before assuming the bench.
Based upon the foregoing, the Committee distinguishes this case from that described in Fla. JEAC Op. 04-37 and advises the inquiring judge-elect he/she may testify in the continuation of an evidentiary hearing as an expert on attorneys’ fees.