State of Washington

Ethics Advisory Committee

Question

How may a judicial officer properly respond to an informal request to provide factual or character testimony in a matter concerning another judicial officer and/or an attorney when the matter is not pending before the Commission on Judicial Conduct or the Washington State Bar Association, but is being investigated by another court for purposes for a Loudermill hearing?

The judicial officer has been contacted by an investigator on behalf of a judicial officer, who is the subject of a complaint pending before the county’s presiding judge. The presiding judge has given the judicial officer a short timeline in which to respond to the complaint. The information the judge will provide will be used in a hearing held to consider firing the public employee, the judicial officer. There is no forum available to subpoena the judicial officer for declaration or testimony.

The judicial officer is being asked to testify because of expertise in the legal area and due to the role as the past chair of the board which regulates this profession. She is also chair of the trial court judges association’s committee on this practice area. The judicial officer has known the judicial officer who is the subject of the complaint in a professional capacity for many years and served on boards and committees with the judicial officer.

Answer

CJC Canon 2(B) provides that judges should not lend the prestige of the judicial office to advance the private interests of others and that judges should not voluntarily testify as character witnesses. The prohibition in Canon 2(B) about lending the prestige of the office for the private interest of others does not apply in this situation. The judge is being asked to provide expertise to a presiding judge about the area of practice, an area where the judicial officer has special knowledge by virtue of the previous role as chair of the board which regulates this profession and the present role on the trial court association’s committee on this practice area. Because the judicial officer will be furnishing this information to another judicial officer the judicial officer will not be using the prestige of the office inappropriately. The judicial officer may present both factual and character testimony. The fact that the proceeding is before another judicial officer will prevent the prestige of the judicial officer from being injected into the proceeding.

Also see Opinions 85-4, 91-24 and 93-12.

Opinion 02-16

08/29/2002