Judge May Testify

A recent opinion of the Florida Judicial Ethics Advisory Committee

In the past, a legal intern worked with the inquiring judge. The intern was denied admission or reinstatement to the Florida Bar. The Florida Bar found that the intern was not truthful about the circumstances of her termination with a prior employer at a law firm and that she was financially irresponsible. The intern is appealing the decision and wants to call the inquiring judge as a witness at the hearing.

The inquiring judge seeks guidance on whether a judge can testify on behalf of a prior intern at a hearing before The Florida Bar.

This Committee has written several times about when a judge may testify in a variety of proceedings. Canons 2A and B of the Florida Code of Judicial Conduct provides guidance on this issue.

Canon 2A provides that a judge shall respect and comply with the law and shall act in a manner that promotes public confidence in the judiciary. Canon 2B provides that a judge shall not lend the prestige of judicial office to advance the private interest of others. It also states that a judge shall not voluntarily testify as a character witness. The Commentary to Canon 2A and 2B explain that a judge must follow the law and allows a judge to testify if properly subpoenaed. Lastly, the Commentary advises judges to discourage a party from requiring a judge to testify as a character witness.

As indicated, the Committee has written several opinions involving the testimony of judges. In JEAC Op. 2024-09, the Committee concluded a judge could testify, if duly subpoenaed, in a perjury case where the judge presided over the underlying case. That said, the Committee was divided as to whether the judge should testify about the weight and impact of the testimony in the underlying case. The Committee ultimately opined that the judge should not provide that opinion testimony. Additionally, in JEAC Op. 2021-13, the Committee explained that a judge is permitted to provide a sworn statement pursuant to a written request by law enforcement investigating an incident in the judge’s trial. 

Additionally, in JEAC Op. 1986-10, the Committee responded to a nearly identical request. In that opinion, the inquiring judge asked “under what circumstances [the judge] may appear on behalf of a suspended Florida Bar member who is seeking reinstatement.” The Committee responded that “[a]ll members agree that you may respond to an official inquiry or request from the Florida Bar, whereas you cannot do so with respect to an inquiry or request from the past member. You may also respond to a subpoena issued for the aforementioned purposes.”

Similarly, in JEAC Op. 1991-05, the inquiring judge asked whether the judge could provide testimony to the Florida Board of Bar Examiners. The Committee concluded the inquiring judge “the proposed conduct is proscribed by Canon 2B if done voluntarily, but is permitted if done in response to a subpoena or an official inquiry or invitation from the Board of Bar Examiners.”

Finally, in in JEAC Op. 1982-15, the Committee concluded that a judge could not voluntarily “furnish favorable information on behalf of an individual” seeking admission to the Florida Bar. Consistent with that opinion we explained that “that Canon 2(B) precludes a judge from submitting character letters or affidavits on behalf of a person involved in a Bar disciplinary proceeding.” Fla. JEAC Op. 2004-22. But in that same opinion we concluded that “it is also clear that a judge may testify, pursuant to subpoena, as a character witness.” Id.

(Mike Frisch)