The New York Advisory Committee on Judicial Ethics has issued an opinion addressing the ethical considerations for a full-time judge who, prior to assuming the bench, served as an assistant district attorney. The opinion concerns a specific scenario where the judge is asked to provide information regarding a criminal case they previously prosecuted, which is now undergoing post-conviction proceedings.
The judge in question has been asked to (1) provide an affidavit stating that they never suborned perjury and that the witness in the case never gave them reason to question the validity of the prosecution, (2) discuss the case with the currently assigned assistant district attorney, and (3) testify in a hearing on the defendant’s motion to set aside the conviction, either at the prosecution’s request or pursuant to a subpoena.
In its opinion, the Committee stated that the judge may provide a factual affidavit confirming they never suborned perjury and that there was no reason to question the prosecution’s validity based on the witness. Additionally, the judge is permitted to discuss their recollections and historical information about the case with a successor assistant district attorney. However, the Committee emphasized that the judge must not offer any legal or tactical advice in these discussions.
The Committee also addressed the matter of the judge testifying in post-conviction proceedings. It concluded that the judge may testify as a fact witness, either voluntarily or if compelled by a subpoena.
The Committee referenced several prior opinions in its analysis, including Opinion 07-153, which states that a judge may voluntarily provide an affidavit or testify as a fact witness if they have personal knowledge of facts in dispute. Opinion 18-22 was also cited, supporting the idea that a full-time judge may serve as a fact witness concerning their former representation of a client.
Furthermore, the Committee drew upon Opinion 11-96, which advises that a judge who prosecuted a criminal matter before taking judicial office may review the file and provide historical information to the current prosecutor, while refraining from offering legal or tactical advice. The Committee also noted the importance of assisting successor lawyers in the transition, as recognized in Opinion 95-20.
The Committee also cited opinions 17-161 and 95-116, noting that a judge may respond to factual inquiries from a former client who hopes to vacate a conviction. The judge “may review the file, but may not act as or be the lawyer.” Providing strictly factual information concerning a former representation, akin to a fact witness, “would not constitute the giving of legal advice or the practicing of law.”
The Committee emphasized the importance of avoiding even the appearance of impropriety and promoting public confidence in the judiciary’s integrity and impartiality. The Committee also noted that a judge should not lend the prestige of judicial office to advance private interests or testify voluntarily as a character witness, and that a full-time judge may not practice law.
