Opinion 12-10

January 26, 2012

Digest:         A judge may witness and authenticate a relative’s signature on a foreign pension document, where the document lists “judges” as one of several categories of acceptable witnesses.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 10-191; 10-118; 03-129; 98-118 (Vol. XVII); NY Const, art 6, § 20.

Opinion:

         A full-time judge asks whether he/she may witness and authenticate a relative’s signature on a foreign pension document.¹ A copy of the document provided to the Committee contains a witness signature line underneath the declaration that “I, the undersigned, declare that this document was signed in my presence and that I can confirm the identity of the signatory.” The instructions indicate that the only acceptable witnesses in the United States are officials from the foreign country’s embassy or consulate, judges, magistrates, or justices of the peace, and municipal or regional officials; by contrast, a notary public is not acceptable.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge may not lend the prestige of judicial office to advance the private interests of the judge or others and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).

         While a judge may only testify as a character witness if under subpoena or in response to an official request from an entity such as a court, district attorney, probation or parole department, no such rule bars a judge from testifying as a fact witness (see Opinion 10-118). For example, the Committee has advised that a judge may provide a factual affidavit and testify as a fact witness regarding an accident the judge witnessed (see Opinion 98-118 [Vol. XVII]).

         Here, the judge proposes to witness his/her relative’s signature and validate, for the foreign country’s military pension, the identity of the judge’s relative. The judge will be merely attesting to facts within his/her personal knowledge and observation, which is akin to providing a factual affidavit and is thus permissible (see Opinions 10-118; 98-118 [Vol. XVII]).² Therefore, the judge may authenticate his/her relative’s signature on a foreign pension document.

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      ¹The judge’s relative must complete the document to confirm that the judge’s relative is still alive and eligible to receive a foreign country’s military pension.

       ²The Committee notes that the judge is not proposing to authenticate the document as a notary public, which is impermissible for certain full-time judges (see NY Const, art 6, § 20; Opinions 10-191; 03-129).