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Could a sitting Maine probate judge serve as an expert witness for a lawyer accused of malpractice?

Short answer No. The committee concluded that the probate judge should decline the requested expert-witness role in a will-drafting malpractice matter.
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JUDICIAL-ME
Issued
August 19, 2009
Source
View Original PDF

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This page answers the general question as of 2009. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.

Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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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 as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A sitting probate judge was asked to testify as an expert for a lawyer accused of malpractice in drafting a will. The committee evaluated the request under Canons 1, 2 and 4 of the then-current Maine Code of Judicial Conduct. Source: Opinion 09-2.

Although Maine probate judges were part-time and could practice law within limits, the committee concluded that this judge should not take the expert-witness role. It linked that conclusion to the appearance of impropriety and the public’s perception of a part-time judge as a judge. Source: Opinion 09-2.

In practice

For the expert request described, the committee’s conclusion was that the sitting probate judge should decline the representation. Source: Opinion 09-2.

Common questions

Q: What expert testimony was requested?

A: A lawyer accused of malpractice in drafting a will asked a sitting probate judge to serve as an expert witness. Source: Opinion 09-2.

Q: Did the judge’s part-time status change the answer?

A: No. The committee acknowledged that probate judges could practice law within limits, but said the requested expert role was inappropriate under the circumstances. Source: Opinion 09-2.

Q: What was the committee’s conclusion?

A: The probate judge should decline the requested expert representation. Source: Opinion 09-2.

Background and rules framework

The opinion invoked Maine Code of Judicial Conduct Canon 1 on judicial integrity and independence, Canon 2 on avoiding impropriety and its Canon 2B prestige-of-office language, and Canon 4A(2) on extra-judicial activity that demeans judicial office. Source: Opinion 09-2.

Citations and references

Maine Code of Judicial Conduct:

  • Canon 1; Canon 2B; Canon 4A(2).

See also

No sibling opinions yet indexed.

Source

Original opinion text

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

JUDICIAL ETHICS COMMITTEE
Advisory Opinion 09-2
Issued August 19, 2009

Issue

May a sitting Probate Judge act as an expert witness?

Statement of Facts

A sitting Probate Judge has received an inquiry asking if he would serve as an expert

witness on behalf of an attorney who has been accused of malpractice in the drafting of a will.

Applicable Provisions

Canon 1 A JUDGE SHALL UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY

Canon 2 A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES

B. Preventing improper influence. . . . A judge shall not lend the prestige of judicial office to advance the private interests of a judge or others . . . A judge shall not testify voluntarily as a character witness.

Canon 4 A JUDGE SHALL SO CONDUCT THE JUDGE’S EXTRA-JUDICIAL ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS

A. Extra judicial activities in general -- A judge shall conduct all of the judge’s extra judicial activities so that they do not:

(2) demean the judicial office.

Discussion

Appearance of impropriety which judges are commanded to avoid as much as

actual impropriety can be defined as follows: “An appearance of impropriety occurs

when reasonable minds with knowledge of all the relevant circumstances disclosed by a

reasonable inquiry would conclude that the judge’s honesty, integrity, impartiality,

temperament or fitness to serve as a judge is impaired.”
While we appreciate that our probate judges are not full-time judges and that they are

permitted to practice law with certain limitations, given the statement of facts and the present

Code of Judicial Conduct, we firmly believe it would be inappropriate for the Probate Judge to

honor the request made of him to be an expert witness.

In our society, a part-time judge is a full-time judge in the eyes of the public. By taking

on the duties of a part-time judge, a judge must forego certain requests for his services.

Conclusion

For the reasons stated above, we are of the opinion that the Probate Judge should decline

the requested expert representation.

1651301_1.DOC

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