noting. that where a judge testifies in such case, “the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants”
How later courts described this case
- noting. that where a judge testifies in such case, “the judge appears to be throwing the weight of his position and authority behind one of two opposing litigants”
- "The risk of prejudice to the other party would be great if the presiding judge were allowed to testify in a subsequent malpractice action."
- negligence charged in attorney’s presentation of evidence in divorce trial; court held that award received by plaintiff should be compared with what “reasonable judge,” knowing all facts, would have awarded
Written by the judges who cited it.
The opinion
CONOVER, Judge,
concurring in result.
While I concur with the majority, the "reasonable judge" standard should be applicable in legal malpractice cases of this nature, I do not believe its reference to the Code of Judicial Conduct is either called for or appropriate. I specifically refer to the following language:
For this reason, allowing the judge to testify also calls into question the appearance of impropriety on the part of the judge in violation of the Code of Judicial Conduct, Canon 2(B).
(At 575). Initially, I am uncertain as to which judge is targeted by this language, Judge Pictor 1 for testifying, Special Judge Stewart for permitting such testimony, or both. Whatever that intent, I will discuss both cases.
In the first instance, the majority states this is a case of first impression in Indiana. Thus, neither Special Judge Stewart nor Judge Pictor had Indiana precedent to guide them in this matter. In any event, I do not believe either one of them violated the letter or the spirit of Canon 2.
The pertinent section of Canon 2 reads B. ... [a judge] should not lend the prestige of his office to advance the private interests of others; ... He should not testify voluntarily as a character witness.
Clearly, Judge Pictor was not testifying as a character witness. Thus, the question is whether he was lending the prestige of his office to advance the private interests of others. Obviously, Judge Pictor was called to testify as an expert witness on the sub *577 ject, and nothing more. I know of no law, statute, or rule which permits a judge to ignore a subpoena to testify. In such circumstances it cannot reasonably be said Judge Pictor was "[lending] the prestige of his office" to Cornett.
I further know of no law, statute, or rule which grants him immunity from testifying on this subject when under oath. Refusal to do so could have subjected Judge Pictor to contempt proceedings in the court in which he was called to testify. Finally, I know of no law, statute, or rule which gave Special Judge Stewart the right to refuse to hear that testimony when offered without proper objection. Judge Stewart properly disposed of that testimony by finding it speculative and disregarding it.
While this case announces a reasonable rule in this area, I do not believe either judge's ethics should be called into question over this testimony. The reference to Canon 2(B) is unwarranted, I believe, and I would strike it from the opinion were I the writer.
For these reasons, I concur in result only. *
. Judge Pictor left the bench on December 31, 1984.