QUESTION: May a judge testify as an expert witness in a lawsuit in which the defendant is a lawyer who is accused of malpractice that allegedly occurred during a previous trial at which the proposed judge witness was the presiding judge?

ANSWER: Not voluntarily. A judge may testify as an expert witness in such a proceeding only if the judge is subpoenaed as a witness and required to testify, but a judge should not testify voluntarily and should discourage a party from requiring the judge to testify as an expert witness.*

The Committee concludes that a judge should not cooperate with a party in becoming an expert witness in such a case, because that would create the appearance of using the prestige of judicial office for the benefit of the party for whom the judge testifies and could also create the appearance of compromising the independence of the judge, by placing the judge on one side of an adversarial proceeding between lawyers who may often appear before the judge.

A judge should not, under any circumstances, accept compensation for testifying.

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* Committee Footnote: Compare Joachim v. Chambers, 815 S.W.2nd 234 (Tex. 1991), holding that under these circumstances a trial judge abused his discretion in refusing to order a party not to call the proposed judge witness.