Opinion 08-158

September 11, 2008

Digest:         A judge who receives a subpoena to testify as a character witness is not ethically required to notify any administrative authority about the subpoena.

Rules:          CPLR Article 23; Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 101.1; Opinions 99-115 (Vol. XVIII); 88-155 (Vol. III).

Opinion:

         A judge believes that he/she may be subpoenaed to testify as a character witness on behalf of a criminal defendant. The judge asks whether he/she must notify the Office of Court Administration or any other administrative authority that he/she has been subpoenaed. The judge also asks whether he/she is subject to any ethical limitations when testifying pursuant to the subpoena.

         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]). Although a judge is prohibited from testifying voluntarily as a character witness (see 22 NYCRR 100.2[C]), a judge who testifies pursuant to subpoena is required by law to do so (see CPLR Article 23). The judge in the present inquiry, therefore, may testify pursuant to subpoena.

         The Rules Governing Judicial Conduct do not require a judge who is subpoenaed to testify to notify the Office of Court Administration or any other administrative authority that he/she has been served with a subpoena. However, the inquiring judge may wish to consult his/her administrative supervisor to determine if any other rule or policy requires him/her to do so.

         With respect to any ethical limitations on the inquiring judge's subpoenaed testimony, a judge must respect and comply with the law (see 22 NYCRR 100.2). Therefore, the Committee previously has advised that a judge should comply with a valid subpoena issued by a competent tribunal (see Opinion 99-115 [Vol. XVIII]) and also has addressed a judge's status as a subpoenaed witness in Opinion 88-155:

A judge as a witness is no different from any other witness and enjoys all of the rights, duties and obligations as set forth in CPLR Article 23. The judge must respond to the subpoena (CPLR section 2301) and is subject to sanctions for disobeying such a mandate (CPLR section 2300). If the judge feels that the subpoena should be quashed, modified or conditioned, CPLR 2304 provides the means for relief.

         While there may be legal objections to a particular question or topic of inquiry, the Committee's authority is limited to issuing advisory opinions concerning judicial issues related to ethical conduct, proper execution of judicial functions within the judicial system, and possible conflicts between private interests and official duties (see Judiciary Law §212[2][l]; 22 NYCRR 101.1]). The resolution of any such legal objections is left to the parties to the action or proceeding, the judge who testifies, and the tribunal that will hear and determine the action or proceeding (see Opinion 99-115 [Vol. XVIII]).