JI-57

August 24, 1992

SYLLABUS

A lawyer may seek the testimony of a sitting judge at deposition if the judge/witness is properly subpoenaed.

Absent facts which show actual bias, a judge is not disqualified from presiding in a matter in which another judge on the presiding judge's court is a witness, (1) if the presiding judge is not the trier of fact, or (2) if the judge/witness is not a necessary witness concerning a contested fact.

References: MCJC 1, 2B, 2C; JI-44; R-3; MCR 2.003(B); Roybal v. Morris, 669 P2d 1100 (1983); Wallace v. Wallace, 352 So 2d 1376 (Ala 1977).

TEXT

A lawyer represents a client in a legal malpractice action pending before a circuit court judge. In response to a properly pleaded defense of statute of limitations, the plaintiff asserts he was not competent to understand his legal rights at the time the cause of action allegedly accrued, and that therefore the statute of limitations has not tolled. Through discovery, the lawyer has learned that the plaintiff engaged in a variety of activity during the crucial interval of time which the lawyer believes demonstrates the plaintiff was competent to understand his legal rights, such as selling and purchasing real estate, executing documents, entering negotiations, agreeing to settlements, and getting married.

The lawyer wishes to depose under subpoena the judge who performed plaintiff's marriage ceremony to determine whether the judge observed any conduct which would lead the judge to conclude the plaintiff did not understand what he was doing. The proposed judge/witness is a circuit judge on the same court before which the malpractice case is pending. The lawyer asks whether there are any ethical problems in seeking the judge's testimony.

MCJC 2C states that a judge should not appear as a witness in a court proceeding unless subpoenaed. In this situation, the judge/witness will be properly subpoenaed.

MCJC 1 requires judges to uphold the integrity and independence of the judiciary. MCJC 2B requires judges to respect and observe the law and to conduct themselves to promote public confidence in the integrity and impartiality of the judiciary. Providing requested information within the judge's knowledge and expertise regarding a dispute before the courts enhances, not detracts, from the integrity of the judiciary, and visibly demonstrates that the judge/witness is participating in legal proceedings the same manner as other citizens.

If the judge's testimony is relevant and necessary to the issues to be determined at trial, it is not unethical for the lawyer to subpoena the judge/witness for deposition.

A second question raised by this inquiry, however, is the appearance created when a judge appears as a witness in a matter in which a judicial colleague presides, and whether on a contested issue the testimony of the judge/witness would be perceived to be weighed more heavily than the testimony of other witnesses, or whether evidentiary rulings would be swayed by the fact that the witness is a judicial colleague. Although the presiding judge is not automatically disqualified from cases in which other judges appear as parties or mere witnesses, MCR 2.003(B) does require recusal when the judge cannot impartially hear a case.

Cases and opinions addressing whether a judge is disqualified from presiding in cases in which the judge is acquainted with a party or advocate rest upon the closeness of the relationship. MCR 2.003(B)(5), for example, requires recusal if a party is within the sixth degree of consanguinity or affinity to the presiding judge, and if an advocate is within the third degree. Recusal may be required when the presiding judge is cohabiting or dating an advocate or party, R-3; or where a party had appointed the judge to the bench and was a friend and client of the judge's father, Wallace v. Wallace, 352 So 2d 1376 (Ala 1977). JI-44 opined that a judge's "personal acquaintance" with an advocate or a party, without more information indicating the nature of the acquaintance which gives rise to a presumption of bias, is insufficient grounds for a judge's automatic recusal. Where a judge is concerned about the appearance of bias because of a personal acquaintance with a party or advocate, the judge should advise the parties and their lawyers of the judge's concerns and recuse unless asked to proceed.

In Judicial Conduct and Ethics, Shaman, Lubet & Alfini, Michie Company, 1990, p. 126, the authors state:

"Judges have been charged with bias because of extrajudicial familiarity with a witness. But if the judge is not the trier of fact in a case where he or she knows a witness, an appellate court may not require recusal. Also, if a witness known by the judge testifies consistently with other witnesses in the case, a reviewing court may not require recusal."

Citing to Roybal v. Morris, 669 P2d 1100 (1983).

We think this formulation strikes the correct balance, and we note that this standard is substantially similar to that set forth in MRPC 3.7 regarding a lawyer as a witness, i.e., a lawyer may not act as advocate at a trial in which the lawyer is a necessary witness concerning a contested fact.

Therefore, absent facts which show actual bias, a judge is not disqualified from a matter in which the judge is personally acquainted with a witness if the judge is not the trier of fact, or if the acquaintance/witness is not a necessary witness concerning a contested fact. If the judge's testimony is merely cumulative, its disproportionate effect in potentially disqualifying the presiding judge suggests that the judge/witness should not be called.