Could a judge sign a factual affidavit about events from his prior representation of a client?

Short answer Yes. The Committee said Canon 2(B)'s restriction on voluntary character testimony did not address the proposed affidavit, which was limited to facts.

Bar

JUDICIAL-AR

Issued

August 23, 2004

Apply this to your situation

This page answers the general question as of 2004. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A circuit judge was asked to sign an affidavit for a lawsuit about actions taken when he had represented a client before becoming a judge.

The Committee said he could sign the affidavit. It read then-current Canon 2(B)’s prohibition on voluntarily testifying as a character witness as distinct from testimony limited to facts, and found the proposed affidavit acceptable.

In practice

The opinion approves the described fact affidavit about pre-bench events. It rests on the difference between factual testimony and voluntary character testimony.

Common questions

Q: Could the judge sign the proposed affidavit?

A: Yes. The Committee expressly approved it.

Q: Did the Committee treat the affidavit as voluntary character testimony?

A: No. It described the affidavit as concerning facts from earlier representation.

Background and rules framework

The Committee interpreted Arkansas Code of Judicial Conduct Canon 2(B) as it stood in 2004.

Citations and references

Arkansas Code of Judicial Conduct Canon 2(B).

Source

Landing page: https://jddc.arkansas.gov/opinions/opinion-no-2004-06/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

August 23, 2004

The Honorable Craig Hannah

Circuit Court Judge

Seventeenth Judicial District Circuit Court

Wilbur D. Mills Court Building

Searcy, AR 72143

RE: Advisory Opinion 2004-06

Dear Judge Hannah:

In your capacity as a Circuit Judge for the Seventeenth Judicial District, you have requested an opinion concerning the propriety of signing an affidavit to be used in a lawsuit in Woodruff County, Arkansas. The affidavit concerns actions that took place prior to you becoming a judge, when you were an attorney representing clients in a fraud case.

You question whether you can sign such an affidavit under the Arkansas Code of Judicial

Conduct. It is the opinion of this committee that you can. Specifically, Canon 2B provides that “…A judge shall not lend the prestige of judicial office to advance the private interest of the judge or others;…A judge shall not testify voluntarily as a character witness.” However, nothing in the Canon addresses a judge testifying as to nothing but facts. In your particular case, the giving of an affidavit to assist a former client, appears to be perfectly acceptable. This question, while never addressed before in Arkansas, has been discussed in other states with the majority finding that such affidavits do not violate the Canons.

Our conclusion is that you may execute the affidavit in question.

Sincerely,

David B. Bogard

For the Committee

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