Signing Affidavit Supporting New Trial Motion

January 25, 2001

CJE Opinion No. 2001-2

You have sought an opinion regarding whether you may sign an affidavit destined for filing in Superior Court in support of a motion for a new trial a former client of yours, acting through current counsel, intends to file in the near future. Apparently, the new trial motion will be based on an alleged conflict of interest arising out of your office-sharing arrangement with a lawyer who represented a police officer who testified against your former client. (1)

With your request, you have enclosed the proposed affidavit. The affidavit was drafted by your former client's current attorney. In summary, the affidavit begins with a paragraph simply describing the office you now hold. Then follow nine paragraphs describing your office-sharing arrangements at the relevant time, one paragraph describing a single occasion on which one of your office-sharers performed work on your former client's case, three paragraphs describing another office sharer's representation of police officers and a final paragraph stating that you were present and available for consultation during jury deliberations in your client's trial.

You have raised four questions regarding the propriety of signing the affidavit. First, you have stated that you do not know what may be appended to the new trial motion in addition to your affidavit when the motion actually is filed. Second, you have stated that you do not believe that you are required to participate in the motion by signing an affidavit. Third, you have questioned whether signing the affidavit could be construed as practicing law. Fourth, and finally, you have stated that "[t]he affidavit itself contains particular paragraphs that can't possibly include the whole picture."

Although it does not address many of the specific questions you have raised, Canon 2(B) is centrally relevant to your overall inquiry. In pertinent part, Canon 2(B) says that a judge "should not lend the prestige of his [or her] office to advance the private interests of others; nor should he [or she] convey or permit others to convey the impression that they are in a special position to influence him [or her]. He [or she] should not testify voluntarily as a character witness."

Canon 2(B)'s prohibition on voluntary proffers of character testimony does not prohibit signing or submitting to a tribunal an affidavit containing factual, material information about which a judge has percipient knowledge. Nor, in the Committee's view, does the signing or submission of such an affidavit impermissibly lend the prestige of judicial office to aid the private interests of litigants. Appointment to judicial office simply does not prevent a judge from giving relevant factual testimony in a judicial proceeding when he or she is competent to do so. That is particularly true when, as is apparently the case here, the judge has particular knowledge of relevant matters that is unavailable from any other source.

Turning from those general principles to the specific questions you have raised, Canon 5(F) states that "[a] judge should not practice law." In the Committee's view, signing a truthful affidavit dealing with matters about which the judge has percipient knowledge is not "practicing law" as the quoted phrase is used in Canon 5(F), particularly when the judge signs the affidavit in response to a request from an attorney who now represents the judge's former client. Accordingly, signing such an affidavit does not violate Canon 5(F).

The Canons say nothing about a judge's obligation to furnish information relevant to a motion for new trial by signing an affidavit. Your decision whether or not to do so thus is unencumbered by any principles the Canons contain.

If you decide to furnish information in the form of an affidavit, however, Canon 2(A) becomes relevant. That Canon provides, in pertinent part, that "[a] Judge should respect and comply with the law and should conduct himself [or herself] at all times in a manner that promotes public confidence in the integrity . . . of the judiciary." Filing an affidavit containing half-truths, unfair characterizations or otherwise skewed versions of the facts would not promote public confidence in the integrity of the judiciary and thus would be inconsistent with Canon 2(A)'s requirements. See In the Matter of Ford, 404 Mass. 347, 355 (1989). In response to your fourth question, therefore, you should be satisfied that the content of the affidavit is true, accurate and complete before you sign it.

Finally, if you sign a true and accurate affidavit based on your percipient knowledge of events material to the former client's new trial motion, then the Canons are not ordinarily implicated by the uses the affidavit's recipient makes of it. That is not to say that any concerns you may have about potential uses are unwarranted. It is simply to say that, on the facts you have presented to us, those concerns do not have roots in the Canons.
 

1. The precise nature of the claimed conflict and of the present proceeding is not clear from your letter or from the proposed affidavit you have submitted to the Committee. Indeed, the affidavit states that you represented the former client in trial in September, 1992, and your letter implies that the new trial motion has been filed in connection with that trial. The docket number on the affidavit, however, indicates that it is designed for filing in a case that originated in 1994. The Committee's conclusions, however, do not turn on the precise details of the underlying proceeding.