June 13, 2013
Digest: A part-time judge, retained as an expert witness, may include his/her judicial status in a curriculum vitae to be exchanged during discovery.
Rules: CPLR §3101(d)(1); Judiciary Law §212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.2(C); 101.1; Opinions 13-76; 12-138; 12-135; 11-04; 10-25; Joint Opinion 09-59/09-86; Opinions 00-31; 93-123 (Vol. XI).
A part-time judge who has been asked to testify as an expert witness asks whether he/she may state on a “curriculum vitae to be exchanged in discovery” that he/she holds a judicial office. The inquiring judge notes that the testimony’s content is unrelated to his/her judicial office.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). In addition, a judge may not use the prestige of judicial office to advance the private interests of the judge or the private interests of another (see 22 NYCRR 100.2[C]).
The Committee has previously advised that a part-time judge may, subject to certain limitations, accept employment as a testifying expert witness (see Opinion 12-138).
A judge is not prohibited from using his/her judicial title when engaging in permissible extra-judicial activities, as long as the judge does not exploit his/her judicial position in the process (see Opinions 13-76 [judge may include his/her judicial status in the biography he/she provides when speaking to or participating in bar association meetings or other groups not related to the practice of law]; 12-135 [judicial title may appear in information booklet about religious outreach trip]; 11-04 [judge may identify him/herself as such during book signing]; Joint Opinion 09-59/09-86 [merely listing a part-time judge’s judicial title in his/her online biography on the law firm’s website is permissible, subject to certain limitations]; Opinions 00-31 [judge’s name and title may be included in video]; 93-123 [Vol. XI] [judge’s title may be included in course announcement]).
In the Committee’s view, the Rules Governing Judicial Conduct likewise do not prohibit a judge who has been retained as an expert witness from including his/her judicial status in a curriculum vitae that will be exchanged as part of discovery. Clearly, such reference to the judge’s judicial status would not be used to advertise the judge’s services as an expert, which is impermissible (cf. Opinion 10-25 [a part-time judge may not refer to his/her judicial status in advertisements for his/her private law practice]). Instead, it will be offered by the party that retained the judge as part of the discovery process (see CPLR §3101[d] [a party who expects to call an expert witness at trial “shall disclose in reasonable detail” certain facts, including “the qualifications of [such] expert witness”]). Whether the judge’s judicial status is relevant or admissible in a particular matter presents a question of law which the Committee cannot address (see Judiciary Law §212[l]; 22 NYCRR 101.1).