Opinion 08-138

September 11, 2008

Digest:         A judge who has been subpoenaed to testify before an attorney grievance committee as a character witness for an attorney need not disqualify him/herself or disclose that he/she has been subpoenaed or did testify when the attorney appears before him/her.

Rules:          CPLR Art. 23; 22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 07-181; 07-102; 99-115 (Vol. XVIII); 99-101 (Vol. XVIII); 89-04 (Vol. III).

Opinion: 

         A judge asks whether disclosure or disqualification is required once he/she is subpoenaed to testify and after he/she testifies before an attorney grievance committee as a character witness for an attorney who appears before him/her.

         Pursuant to the Rules Governing Judicial Conduct, a judge must avoid impropriety and the appearance of impropriety in all the judge's activities (see 22 NYCRR 100.2), and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A judge, therefore, may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]; see also Opinions 99-101 [Vol. XVIII]; 89-04 [Vol. III]). However, a judge should comply with a lawful subpoena (see CPLR Article 23; 22 NYCRR 100.2[C]; see also Opinion 99-115 [Vol. XVIII]). Consequently, the inquiring judge also should comply with a lawful subpoena to testify before an attorney grievance committee.

         The judge need not disclose that he/she has been or will be called to testify as a character witness before an attorney grievance committee for an attorney who appears in the judge's court or disqualify him/herself as long as the judge believes he/she can be fair and impartial in matters where the attorney appears (see Opinion 07-102; cf. Opinion 07-181 [judge should seriously consider confidential nature of attorney grievance proceedings before making any disclosure]). This conclusion, however, is distinguished from the Committee’s prior Opinions 07-73 and 89-154 (Vol. V). There the Committee advised that, for two years after an attorney testifies on a judge’s behalf before the Commission on Judicial Conduct, the judge is disqualified from presiding, subject to remittal, when the attorney appears before him/her, as the judge’s impartiality might reasonably be questioned so soon after such testimony is given.