Opinion 95-135

November 9, 1995

Digest:         A full time judge subpoenaed to testify as a character witness in a domestic relations matter in a court of another state may submit a letter or affidavit in lieu of personal appearance at the suggestion of, and with the consent of the attorneys therein.

Rules:          22 NYCRR 100.2(a)(c); Code of Judicial Conduct, Commentary 2C; Opinion 87-05

Opinion:

         A full time judge being subpoenaed to testify as a character witness in a domestic relations matter in a court of another state, inquires if it is permissible to submit a letter or affidavit in lieu of a personal appearance. Such a procedure has been suggested by and has the consent of all attorneys involved in the matter. The purpose of this procedure is to save time, travel and expense.

         Section 100.2 of the Rules of Judicial Conduct (22 NYCRR 100.2[a]), states that no judge shall testify voluntarily as a character witness. However, he/she may do so where properly subpoenaed. (See Opinion 87-05)

         Canon 2C of the Code of Judicial Conduct provides in part that:

A judge must not testify voluntarily as a character witness because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies . . . . . . .

A judge may, however, testify when properly summoned. Except in unusual circumstances where the demands of justice requires, a judge should discourage a party from requiring the judge to testify as a character witness..

         The inquiring judge will be duly subpoenaed to testify. At the suggestion and with the consent of the attorneys involved, the judge may submit a written statement containing his/her testimony in lieu of personal appearance in order to conserve time, travel and expense, a common practice widely employed in litigation.

         Under the circumstances presented, the Committee is of the view that, the judge may submit a written statement of his/her testimony in lieu of personal appearance pursuant to the subpoena and in accord with the conditions specified in the letter of inquiry.