December 14, 1995
Digest: A judge may recount his/her recollection of an event, the judge witnessed, to an attorney retained by a party to determine whether the event may be actionable.
Rules: 22 NYCRR 100.2(c); 22 NYCRR 100.3(C)(1) (1)
A Town justice witnessed an argument between two individuals. The justice believes that the spouse of one of the protagonists of the argument is "taking legal action". The justice also believes that "there is a possibility" that the other participant in the argument might face arraignment on charges of harassment or disorderly conduct. In the event this possibility materializes, the justice may be requested to preside at the arraignment.
The individual who has taken "legal action" has requested that the justice furnish him/her with a letter containing an unsworn narrative of the events surrounding the argument the justice witnessed.
In general, judges may testify as fact witnesses, preferably, but not necessarily pursuant to subpoena (see Opinions 90-26, 89-76). "The decision of any witness to be interviewed by counsel for any or all parties to a proceeding prior to an ... appearance is personal, and not ethical in nature" (Opinion 88-155). Hence, there is no absolute ethical bar to the justice's providing the statement requested, if he/she wishes to do so.
Also, the Committee does not believe that furnishing the letter would alter the justice's status vis-a-vis the need for disqualification because such disqualification would be required in light of the judge's "personal knowledge of disputed evidentiary facts" (22 NYCRR 100.3 [c][a][i]).