July 29, 2013
This responds to your inquiry (13-53) asking if you may give a statement or affidavit requested by an Assistant D.A. concerning a criminal case, adjudicated more than 20 years ago, in which you represented the defendant. That defendant is now subject to an immigration removal proceeding and has filed a CPL §440 motion in the earlier criminal case alleging ineffective assistance of counsel.
A judge must avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see id.).
While a full-time judge is prohibited from practicing law (see 22 NYCRR 100.4[G]), the Committee has advised that giving an affidavit or testimony about a case where the judge served as an attorney before becoming a judge does not constitute practicing law, and thus is permissible (see Opinion 07-32; 04-67; 96-128 [Vol. XV]). However, you must refrain from disclosing any privileged information (see, e.g., 4503), absent a court order to disclose such information or a waiver from your client (see 08-223).
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)