Joint Opinion 94-73 and 94-75

September 22, 1994

Digest:         A judge may accept a statutory witness fee tendered pursuant to the Federal Rules of Civil Practice when duly subpoenaed to testify at a deposition in a Federal Court action. The fact that the statutory fee is payable by the State of New York Department of Law does not prohibit the judge from accepting it.

Rule:            22 NYCRR 100.2(a)

Opinion:

         Two judges separately ask whether they may accept a statutory witness fee of $50.00 tendered by check when each was served with a subpoena for the taking of depositions in an action involving a challenge as to the manner in which judges are selected in the State of New York. The action is pending in the United States District Court, Southern District of New York. The checks were drawn on a petty cash account of the State of New York Department of Law in the stated amount.

         Inasmuch as the checks do not represent compensation or a stipend for the judge's services, but rather is a fee set by and payable pursuant to law (i.e., the Federal Rules of Civil Procedure) to any and all individuals so served in a pending Federal Court action, the tendered witness fees may be accepted by the judges.