2012-20 (Emergency Staff Opinion issued July 9, 2012)
Affidavits; Testimony of Judge; Witness;
Rules 1.3, 2.11, 3.2 & 3.10
 
Issue: A Judicial Official was a victim of a property crime at his or her home and witnessed conduct relevant to the crime. May a Judicial Official give a statement or affidavit to the police (which may be used in an arrest and/or search warrant) and testify at any subsequent criminal proceeding?

Applicable Rules: Rule 1.3 prohibits a Judicial Official from using the prestige of office to advance the Judicial Official’s personal or economic interests.

Rule 2.11 requires disqualification in any proceeding in which the judge’s impartiality might reasonably be questioned.

Rule 3.2 specifically permits a Judicial Official to consult with executive branch officials when acting in a matter involving the Judicial Official’s legal or economic interest.

Rule 3.10 prohibits a Judicial Official from practicing law except as a self-represented party or giving legal advice to a family member (without compensation).

Emergency Staff Opinion: After consulting with several members of the Committee and Cindy Gray, Director of AJS Center for Judicial Ethics, staff counsel advised the Judicial Official as follows:

On the facts presented, the Judicial Official may report the crime, provide a statement or affidavit and testify, if necessary, at any subsequent criminal proceeding, subject to the following conditions: (1) the Judicial Official should not refer to his or her judicial position unless the crime is related to the judicial position (i.e. the offender is someone the Judicial Official previously sentenced, and therefore the judicial position is relevant to the motive for the criminal activity), and (2) the Judicial Official should be advised that while not the subject of the Judicial Official’s inquiry, disqualification issues may arise should the police department or prosecutor’s office handling the criminal matter appear before the Judicial Official and the Committee is available should the Judicial Official have any questions about the duty to disqualify himself or herself in such a circumstance.