The Ethics Advisory Committee has been asked for its opinion on the question or of whether the Code of Judicial Conduct prohibits an active senior judge from testifying as an expert witness on behalf of a public utility corporation in a federal court action as to the reasonableness of a settlement agreement entered into in a wrongful death case filed against the corporation in state court.

It is the committee's opinion that the answer is yes because the giving of such testimony lends the prestige of the judicial office to advance the private interests of others.

Senior judges are subject to the applicable provisions of the Code of Judicial Conduct. CJA Rule 11-201. The only provision in the Code of Judicial Conduct which addresses the ethical propriety of a judge testifying as a witness is contained in Canon 2B which provides:

A judge should not testify voluntarily as a character witness ....

However, neither the Code, the ABA annotations to the Code nor the advisory opinions interpreting the Code address the question or whether a judge may testify as an expert witness.

The Utah Code and the Utah Rules of Evidence provide that a judge may be called as a witness, but not in a trial over which he or she is presiding. Utah Code Ann. 78-24-3 and URE 605. Thus, a judge is not disqualified by virtue of his or her office from testifying. McCormick on Evidence;  People v. Tippett , 733 P.2d 1183 (Colo. 1987).

Rule 702 of the Utah Rules of Evidence provides that a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify as to scientific, technical, or other specialized knowledge that will assist the trier of fact to understand the evidence or to determine a fact in issue.

In the situation presented, the senior judge has been asked to testify as an expert witness on behalf of a public utility corporation as to the reasonableness of a settlement agreement entered into between the plaintiffs in a wrongful death case and the public utility corporation. Although the senior judge has undoubtedly presided over many cases in which settlements were reached, this experience does not automatically qualify the judge as an expert on the reasonableness of the settlement. The reasonableness of a settlement in any given case may be based upon a number of factors. Many of which are neither available to the judge nor within the judge's knowledge or experience. For example, the reasonableness of a settlement agreement may be established by offering a comparative analysis of settlement data from similar cases. Such an analysis is not an activity uniquely within the expertise of a trial judge nor is such data available exclusively to trial judges. In fact, in Utah, settlement data is not even collected or compiled by the courts and in most cases. not available as a part of the official court record. Thus, even if a judge were willing to undertake the task of reviewing settlement data in Utah cases, the amount of settlement data available for review is extremely limited.

Moreover, even if a judge was retained to testify as an expert witness solely based upon their trial experience, the judge would be hampered in his or her ability to compare settlement agreements in cases which he or she had presided over because in most cases, the factors which determine the terms and conditions of the final settlement agreement are never brought to the attention of the court. Consequently, if a judge's qualifications as an expert in the area of settlements is questionable, the question then is why is the judge being retained as an expert. The answer, most likely, is that the judge is being retained as an expert because of the prestige of his or her judicial office.

Canon 2B of the Code of Judicial Conduct provides that "[a] judge should not lend the prestige of the judicial office to advance the private interests of others: nor should a judge convey or permit others to convey the impression that they are in a special position of influence."

The Commentary to Canon 2B explains:

Public confidence is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. He must expect to be the subject of constant public scrutiny. He must therefore accept restrictions on his conduct that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly.

By testifying as a paid expert on behalf of one of the litigants in support of a settlement which presumably benefitted that litigant, the judge would be lending the prestige of his office to advance the private interests of that litigant and may convey the impression that the litigant, a public utility corporation, engaged in frequent transactions in court, is in a special position of influence to the judge.

Informal Opinion No. 1311 of the American Bar Association committee on Professional Ethics concluded that it would be improper for a court to take any part in a cause by which the court would become, or appear to be, an advocate for either party. Here, by testifying in support of a settlement offer on behalf of one of the litigants, the judge would appear to be acting as an advocate for that party.

It is the committee's opinion that where a judge has been asked to provide expert testimony as to the reasonableness of a settlement offer, the giving of such testimony lends the prestige of the judicial office to advance the private interests of others and thus is prohibited by the Code of Judicial Conduct.