Testifying as a Character Witness: Disbarred Attorney's Reinstatement Proceeding
December 9, 2016
Your question concerns a disbarred lawyer who has petitioned for reinstatement to the Massachusetts bar (hereafter "petitioner"). You ask whether you may testify voluntarily for the petitioner at his reinstatement proceeding. Two years ago, while you were in private practice, you sought and were granted permission by a Justice of the Supreme Judicial Court to employ the petitioner as a paralegal, conditioned on your directly supervising him. You did so and state that you are therefore in a unique position to speak to the petitioner's current competency and learning in the law. You would like to attest that the lawyer has the moral qualifications and learning in the law required for admission to practice law, and that the lawyer's resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or the public interest. SJC Rule 4:01, Section 18(5).
Rule 3.3 of the Code of Judicial Conduct provides that "[a] judge shall not testify as a character witness in a judicial, administrative, or other adjudicatory proceeding or otherwise vouch for the character of a person in a legal proceeding, except when duly summoned." Comment  provides the rationale for this rule. It explains, "[a] judge who, without being subpoenaed, testifies as a character witness lends the prestige of judicial office to advance the interests of another," and references Rule 1.3, which prohibits a judge from abusing the prestige of judicial office. We agree with CJE Opinion 2005-5 that a reinstatement proceeding is a formal judicial proceeding, and that you may neither testify voluntarily nor submit an unsworn letter(1) vouching for the lawyer's fitness to be a member of the Massachusetts bar.
Our answer is not changed by the addition of Comment  to the 2016 Code. That Comment states that Rule 3.3 "does not preclude a judge from providing a character reference based on personal knowledge for an applicant to the bar of any state." An application for initial admission to the bar is not a judicial proceeding, in contrast with a petition for reinstatement.(2)
(1) You attach a draft letter to the Justices of the Supreme Judicial Court with your request.
(2) You may, of course, appear in response to a subpoena or a request for information made by Bar Counsel or the Board of Bar Overseers.