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 notapply to a judge’s testifying as a fact witness in an adjudicatoryproceeding. As we said in Opinion 2001-2, where we held  that a judgecould produce a factual affidavit in connection with a former client’sparole hearing:

“Canon 2B’sprohibition on voluntary proffers of character testimony does notprohibit signing or submitting to a tribunal an affidavit containingfactual, material information about which the judge has percipientknowledge….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 isnot voluntary and you would be appearing pursuant to a subpoena, yourtestimony is treated differently under the Code. See  Opinions 97-2 and98-6.  There, the Committee said not only that the judge could testifypursuant to a subpoena, but also that the judge was obliged to complywith a summons to testify.

     The committee concludes that your testimony concerning factswithin your knowledge does not violate the Code of Judicial Ethics.  Wenote, 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 opinionson such matters, you should make certain that you either have theHusband’s (your former client) waiver of the attorney-client privilegeor you should obtain competent legal advice from your own counsel as towhether the privilege should be asserted by you on behalf of the formerclient. You should also separately satisfy yourself as to any legalobligation you may have to assert the privilege on behalf of thedeceased client, the Wife.

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

     Thirdly, should you conclude after consultation with your counseland counsel for the former client, that the issue of attorney-clientprivilege has been resolved and you are prepared to testify, you shouldlimit your testimony to facts within your knowledge. As we said inOpinion 2006-2, your testimony must be scrupulously true, accurate andcomplete. You should limit yourself to the facts and not engage inopinion as that might be perceived as lending the prestige of youroffice to your former client’s cause. Furthermore, you should notstrategize with your former client’s current counsel or take steps toadvance his cause as to do so would violate the prohibition in Section4 G of the Code against your engaging in the practice of law. Withthese cautions in mind, the Committee concludes that your testimonywould not violate the Code of Judicial Conduct.

(Mike Frisch)