January 19, 1995
Digest: A Family Court judge who had previously served as an assistant district attorney may review the file and provide information to the successor prosecutor with respect to the retrial of a case previously handled by the judge as a prosecutor.
Rule: 22 NYCRR 1OO.2(a)(c)
A Family Court judge had previously served as an assistant district attorney. A double rape case previously prepared and tried by the inquiring judge as a prosecutor ended with a hung jury and is now being retried. Based upon defense counsel's opening statement in the retrial, it appears that the judge may be called as a witness. If subpoenaed, the judge "would appreciate the opportunity to have access to the file and to discuss the case with the prosecuting attorneys." In particular, the judge asks whether he/she can "meet with the District Attorney's office to discuss the trial, my potential testimony and review the file as necessary." Also, the judge asks whether he/she "can answer specific questions regarding my recollection or knowledge of the case?" and, whether the judge can have "humanitarian contact with the victims and their families" i.e., "if they call can I permit them to express their feelings to me and offer them emotional support?"
The Committee perceives no ethical impediment to the degree of participation anticipated by the judge. As a lawyer there is a continuing duty of loyalty to the former client as well as an obligation to make available information to the successor lawyers and to assist in the transition. The judge may review the file but may not act as or be the lawyer.