Elected Judge May Complete Expert Witness Testimony

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?

ANSWER: Yes.

FACTS

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.

One member  dissents and believes this inquiry is controlled by the Committee’s prior  decisions in Fla. JEAC Ops. 04-37 and 03-06.

(Mike Frisch)