March 29, 2016
This responds to your inquiry (16-41) asking if you may, at the request of an attorney who recently appeared before you as the subject of a Treatment Court proceeding, voluntarily testify in the attorney’s disciplinary proceeding concerning 1) your opinion about the attorney’s character or fitness; 2) your view on the appropriate sanction; and 3) the quality of the attorney’s participation in the Treatment Court program and what the attorney may have contributed to its effectiveness.
The Rules Governing Judicial Conduct provide that judges must uphold the independence of the judiciary and must not lend the prestige of judicial office to advance the private interests of others (see 22 NYCRR 100.1; 100.2[C]). In particular, a judge “shall not testify voluntarily as a character witness” (22 NYCRR 100.2[C]). Thus, a judge may not testify voluntarily before a disciplinary committee at the request of the subject attorney or his/her counsel. However, a judge may do so in response to a subpoena or at the request of the disciplinary committee and may authorize the attorney to tell the disciplinary committee that it may contact the judge concerning the matter.
However, the judge must not provide his/her views on the appropriate sanction unless specifically directed to by the disciplinary committee or by subpoena.
Enclosed, for your convenience, are Opinions 10-188; 90-156; and 89-73 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)