May a temporary family court judge testify as an expert in an attorney-malpractice divorce case?
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This page answers the general question as of 2022. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
A temporary family court judge who also practiced law and mediated domestic cases was asked to testify as an expert in an attorney-malpractice suit arising from a divorce action. The judge was not then assigned to the county where the suit was filed.
The Commission reviewed Application V and Rules 1.2, 1.3, 2.10 and 3.1. It concluded that the judge could not concurrently serve as an expert witness. The opinion identified misuse of temporary judicial status to bolster testimony and comments on a pending matter under Rule 2.10, and cited two earlier JIC expert-witness opinions.
In practice
The prohibition applies to the proposed expert testimony while the requester continues temporary family court judging.
Common questions
Q: Could the temporary judge serve as the expert witness?
A: No. The Commission prohibited the concurrent roles.
Q: Why did the Commission reject the testimony?
A: It identified a risk of using judicial status to bolster opinions and testimony about a pending case.
Background and rules framework
Application V describes which Code rules apply to pro tempore part-time judges. The opinion applies Rules 1.2, 1.3, 2.10 and 3.1 to the requested expert testimony.
Citations and references
West Virginia Code of Judicial Conduct:
- Application V, pro tempore part-time judges.
- Rules 1.2 and 1.3, public confidence and judicial prestige.
- Rule 2.10(A), (B), statements on pending matters.
- Rule 3.1(A), (C), extrajudicial activity.
Other opinions cited:
- JIC Advisory Opinion 2002-01, senior-status judge as expert in an attorney-fee case.
- JIC Advisory Opinion 2002-06, magistrate as expert in civil litigation.
See also
Source
- Landing page: West Virginia Judicial Investigation Commission advisory opinions
- Original PDF: JIC Advisory Opinion 2022-05, redacted
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
JUDICIAL INVESTIGATION COMMISSION
City Center East - Suite 1200 A
4700 MacCorkle Ave., SE
Charleston, West Virginia 25304
(304) 558-0169 • FAX (304) 558-0831
January 11, 2022
Re: JIC Advisory Opinion 2022-05
Dear Judge 1
Your recent request for an advisory opinion was reviewed by the Judicial Investigation Commission. The facts giving rise to your request are as follows: From 1997 through 2008, you served as a Family Law Master/Family Court Judge in Counties. Since 2009, you have served as a Temporary Family Court Judge and have been assigned to hear cases in Family Courts in 38 different counties over that period. Since 2017, your rate of assignments has declined to perhaps 4 or 5 times per year.
You currently practice law in domestic relations, criminal law, abuse and neglect, estate planning and general areas of law. You also do a significant amount of domestic mediation. You do not practice law in any county where you are serving as a Temporary Family Court Judge.
You are not currently serving as a Temporary Family Court Judge in County, although you have in the past. Recently, you were asked to serve as an expert witness in a malpractice action filed in County against an attorney for his/her alleged failure to perform certain acts and/or obtain certain outcomes in a divorce action
which occurred in
County. You want to know if you can serve as an expert
witness.
To address your question, the Commission has reviewed Application V and Rules 1.2, 1.3, 2.10 and 3.1 of the Code of Judicial Conduct which state:
JIC Advisory Opinion 2022-05
January 11, 2022
Page 2 of 3
Application V Pro Tempore Part-Time Judge
A pro tempore part-time judge who serves or expects to serve once or only sporadically on a part-time basis under a separate appointment for each period of service or for each case heard is not required to comply:
(A) except while serving as a judge, with Rules 2.4, 3.2, and 4.1(A); or
(B) at any time with Rules 3.4, 3.5(A), 3.9, 3.10, and 3.11(B).
Rule 1.2 -- Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
Rule 1.3 - Avoiding Abuse of the Prestige of Judicial Office
A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.
Rule 2.10-Judicial Statements on Pending/Impending Cases
(A) A judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might substantially interfere with a fair trial or hearing.
(B) A judge shall not, in connection with cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.
Rule 3.1- Extrajudicial Activities in General
A judge may engage in extrajudicial activities, except as prohibited by law or this Code. However, when engaging in extrajudicial activities, a judge shall not: ...
(A) participate in activities that will interfere with the proper performance of the judge's judicial duties; ....
JIC Advisory Opinion 2022-05
January 11, 2022
Page 3 of 3
(C) participate in activities that would appear to a reasonable person to undermine the judge's independence, integrity or impartiality;
Based upon the foregoing, the Commission is of the opinion that you cannot serve as an expert witness in the proceeding. You would not be allowed to use your position as a Temporary Family Court Judge to bolster your opinions. Furthermore, the Commission believes that any testimony elicited from you would constitute comments on a pending matter in violation of Rule 2.10. Therefore, you cannot concurrently serve as a Temporary Family Court Judge and an expert witness. This decision is consistent with our holdings in JIC Advisory Opinion 2002-01 (senior status judge could not serve as an expert witness in attorney fee case) and JIC Advisory Opinion 2002-06 (sitting magistrate could not serve as an expert witness in civil litigation).
We hope that this opinion fully addresses the issue which you have raised. Please do not hesitate to contact the Commission should you have any questions, comments or concerns or desire additional advice.
Sincerely,
Judicial Investigation Commission
ADM/tat
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