Testifying on Behalf of an Attorney Before the Board of Bar Overseers

May 29, 1997

Opinion 97-6

Dear:

On March 11, 1997 you called the Secretary of this Committee and relayed the following facts which you also included in a letter sent by fax to the Secretary on the same date.

You are the Clerk of the Court. An attorney has asked you to testify on his behalf in a disciplinary matter concerning the attorney before the Board of Bar Overseers. You sought the Committee's opinion as to the propriety of your testifying on behalf of the attorney. Because the hearing in question was scheduled for March 14, 1997, you required an immediate answer to your inquiry.

On March 12, 1997, after contacting the Committee members by telephone, the Secretary called to tell you that in the opinion of the majority of the members, your testifying before the Board of Bar Overseers would not be prohibited by the Code provided that you recuse yourself from any further role as magistrate in matters involving that attorney.

This letter confirms the advice you were given by the Secretary. Unlike the Code of Judicial Conduct, the Code of Professional Responsibility for Clerks of the Courts contains no prohibition on a Clerk-Magistrate voluntarily testifying as a character witness. However, under the provisions on impartiality and disqualification contained in the Clerks' Code, if you testify on behalf of the attorney before the Board of Bar Overseers, you should disqualify yourself under Canon 4(E) from serving in an adjudicative capacity in any future proceedings involving that attorney.