Testifying Pursuant to Subpoena at Former Client's Parole Hearing
March 28, 2006
CJE Opinion No. 2006-2
You have requested advice as to your obligations under the Code of Judicial Conduct when an attorney for your former client subpoenas you to testify in the client's behalf before the Massachusetts Parole Board. As outlined below, the committee is of the opinion that you may testify pursuant to the subpoena.
Background. While in private practice, prior to your appointment as a judge, you represented an individual who was convicted of murder in the second degree. You took over his representation at the appeal stage. The appeal was successful, and the client was retried. You continued to represent him at his retrial, where he was convicted a second time, and on appeal from his second conviction. Prior to his retrial, the District Attorney's office offered your client an opportunity to plead guilty to manslaughter, with a recommended sentence of nineteen to twenty years. Your client declined the offer. He is presently incarcerated pursuant to his second conviction, and a request for parole (his second attempt to obtain parole) is currently scheduled to be heard by the Parole Board.
Your former client is now represented by new counsel. Without describing all of the relevant details, it suffices to say that counsel has subpoenaed you to testify about the plea offer that was made by the prosecutor before the client's second trial, and about your client's decision to forego the offer and proceed with the trial. You indicate in your request that these facts are necessary in counsel's opinion to rebut the view of the case -- and of a specific factual and legal issue within the case -- taken by various members of the Parole Board when the matter was before them for the first parole hearing. You also indicate that you are the only person available to provide this information and to testify to the circumstances of your client's decision to go to trial.
You ask specifically whether you are permitted to testify pursuant to the subpoena in these circumstances. (1)
Analysis. The principal section of the Code at issue here is Section 2 B, which states:
"A judge shall not allow family, social, political, or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness in an adjudicatory proceeding."
The rationale for the prohibition on voluntarily testifying as a character witness is set forth in the final paragraph of the commentary to Section 2 B. The commentary states:
"A judge must not testify voluntarily as a character witness in an adjudicatory proceeding because to do so may lend the prestige of the judicial office in support of the party for whom the judge testifies. Moreover, when a judge testifies as a witness, a lawyer who regularly appears before the judge may be placed in the awkward position of cross-examining the judge. A judge may, however, testify when properly summoned. Except in circumstances where the demands of justice require, a judge should discourage a party from requiring the judge to testify as a character witness. Adjudicatory proceedings include not only proceedings before courts but also before administrative agencies, including disciplinary bodies."
While Section 2 B prohibits a judge from voluntarily giving character testimony, nothing in that section or in the commentary prevents a judge from testifying in appropriate circumstances as a fact witness in an adjudicatory proceeding.(2) Thus, in CJE Opinion No. 2001-2, this committee concluded that a judge was permitted under the Code to provide a factual affidavit in support of a former client's motion for a new trial.(3) The committee stated:
"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 the 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."
(Emphasis added). Accord CJE Opinion No. 2004-7 (concluding that a judge could, consistent with Section 2 B, provide factual information concerning a former client's case to the client's new counsel to be used in the client's effort to obtain a new trial or other relief).
Indeed, your testimony before the Parole Board would be given pursuant to a subpoena. In both CJE Opinion No. 97-2 and CJE Opinion No. 98-6, the committee stated that testimony pursuant to a subpoena is treated differently from "voluntary" testimony that might otherwise be prohibited under the Code. In the latter opinion, the committee not only concluded that a judge could give testimony pursuant to a subpoena, but also added that "[a] judge is obligated to comply with a summons to testify. See In re Fogan, 646 So.2d 191, 194 (1994)."
The committee therefore concludes that your testimony -- factual testimony to be given pursuant to a subpoena -- is not prohibited by the Code of Judicial Conduct. Several caveats are in order, however. First, even in the case of factual testimony, the committee is of the view that a judge served with a subpoena (or who is advised by counsel that a subpoena is forthcoming) should inquire of counsel whether the judge's testimony is truly necessary or whether the information sought from the judge might be obtained from some other source. For even in the case of a judge's giving purely factual testimony, there is the danger that counsel might try to capitalize on the prestige of the judicial office by subpoenaing the judge instead of some other suitable witness with the same information. Taking this precaution would minimize any such potential abuse, as well as the abuse of the judge's office through the use of a so-called "friendly subpoena." See Annotated Model Code of Judicial Conduct at 73-74 (American Bar Association 2004).
Second, whenever any testimony is given by a judge, whether it be oral or in writing, voluntary or pursuant to a subpoena, the judge should be mindful that his or her testimony must be "scrupulously true, accurate, and complete." CJE Opinion No. 2004-7. Third, although you may give the factual testimony being asked of you, you may not strategize with the client's current counsel or take any other steps as an advocate to advance your former client's cause; to do so would violate the prohibition in Section 4 G of the Code against your engaging in the practice of law.
Conclusion. You have indicated that your testimony before the Parole Board will be factual in nature and not character testimony. You have also indicated that your testimony is necessary in the sense that the factual information you have is not available from any other source. And finally, as you have indicated, your testimony would be given pursuant to a lawful subpoena.
The committee concludes that, in these circumstances, nothing in the Code of Judicial Conduct prohibits your complying with the subpoena and giving such testimony.
1 Before you were served with this subpoena, counsel for your former client called you to say that a subpoena may be forthcoming. At that time you sought and were given informal advice from this committee that was the same as the advice given in this opinion. After a subpoena was in fact served on you, you submitted this request for a formal opinion.
2 A parole hearing is an adjudicatory proceeding within the meaning of the Code.
3 CJE Opinion No. 2001-2 was decided under Canon 2 (B) of the Code as it existed prior to October 1, 2003. That provision was essentially the same as Section 2 B of the current Code.