Opinion 18-138

September 6, 2018

Digest:         (1) A judge with personal knowledge of relevant facts may testify as a fact witness in an attorney disciplinary proceeding, either voluntarily or pursuant to a subpoena. (2) The judge may provide a written factual statement at the request of the attorney’s lawyer, but its admissibility is a legal question.

Rules:          22 NYCRR 100.2; 100.2(A); 100.2(C); Opinions 15-74; 12-10; 10-118; 07-153; 01-25; 95-148; 88-155.

Opinion:

         The inquiring surrogate recently presided over a probate proceeding. The attorney who drafted the will submitted an affidavit concerning a drafting error in the will. Although the affidavit incorrectly referred to an attached exhibit as a “conformed copy” of the will, the surrogate nonetheless readily understood the attorney’s meaning, accepted the attorney’s explanation, and probated the will. The grievance committee apparently considers the attorney’s affidavit deceptive or inappropriate, and the attorney is now facing disciplinary charges. The surrogate asks if he/she may serve as a fact witness in the disciplinary proceeding, either voluntarily or if subpoenaed. If so, the judge further asks if he/she may provide a written statement about the facts to the grievance committee, at the request of the attorney’s lawyer.

         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]).

         Clearly, a judge may testify as a witness before an attorney disciplinary committee if subpoenaed (see e.g. Opinion 88-155). However, we have not previously addressed whether a judge may voluntarily testify as a fact witness in such proceedings. As we said in Opinion 12-10 (citations omitted):

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. 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.

Similarly, we said a judge “may be interviewed by the attorneys for the plaintiff in a pending lawsuit, on matters observed by the judge in his or her court and on the practices and procedures of the court,” provided he/she does “not express any opinion on the legal merits of the lawsuit, or comment on any pending or impending case” (Opinion 01-25). A judge also may provide “a letter containing an unsworn narrative” of an event the judge witnessed, “to an attorney retained by a party to determine whether the event may be actionable” (Opinion 95-148; see also Opinion 10-118).

         We see no reason to apply a different standard in an attorney disciplinary proceeding. This surrogate has personal knowledge, in his/her judicial capacity, of facts concerning the attorney’s affidavit and its use in a probate proceeding before him/her. We conclude he/she may testify concerning these facts at the request of the respondent attorney or his/her counsel, either voluntarily or pursuant to a subpoena.¹

         Finally, we conclude the judge may provide this voluntary factual testimony in the form of a letter or other written statement. Of course, we cannot comment on legal questions such as admissibility of the proposed statement or other matters of form or procedure (cf. Opinion 15-74 [“the proper format of the judge’s [testimony] is a legal or procedural question which the Committee cannot address”]).

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¹It is preferable, but not required, for a judge to testify as a fact witness pursuant to subpoena (see e.g. Opinions 07-153; 95-148).