Opinion 25-181

December 18, 2025

Digest: Where the subject matter of a civil case brought by a governmental entity against a defendant involves financial statements relating to real estate assets, a judge who had previously assisted the prosecutor in a separate criminal matter against the same defendant with a subpoena for financial documents must make full disclosure of the prior representation.  If disclosure is not possible in the judge’s court, then the judge must disqualify from the civil case.

Rules:   Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.2(B); 100.3(B)(4); 100.3(E)(1); 100.3(E)(1)(b)(i); Opinions 24-40; 23-107; 14-10.    

Opinion:

          While in private practice, the inquiring judge served as co-counsel to a prosecutor’s office in a criminal matter on a specific legal issue concerning a subpoena for a subset of the defendant’s financial documents.  A different governmental entity has sued the same defendant civilly.  Although the inquiring judge had absolutely no involvement in the civil matter, and the allegations “appear to be completely distinct” from those in the criminal matter, the judge notes that the “subject matter of the civil case and underlying facts, as set forth in the filings, concerns various financial statements regarding real estate assets that were submitted in connection with applications for loans and insurance.”  Accordingly, the judge asks if he/she must disqualify in any proceedings relating to the civil case to avoid an appearance of impropriety.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a judge must not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment (see 22 NYCRR 100.2[B]), and must “perform judicial duties without bias or prejudice against or in favor of any person” (see 22 NYCRR 100.3[B][4]).  A judge must disqualify in a proceeding in which the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]) or in other specific circumstances required by rule or law (see generally id.; Judiciary Law § 14).  For example, a judge is disqualified, without the possibility of remittal, when “the judge knows that the judge served as a lawyer in the matter in controversy” (22 NYCRR 100.3[E][1][b][i]).

          We have advised that “a judge is not barred from presiding over all matters involving a particular individual, based solely on the fact that the individual was previously a criminal defendant in a matter investigated or prosecuted by the inquiring judge or an assistant district attorney [then] under his/her supervision” (Opinion 14-10).  Indeed, “where there is no substantial connection between the circumstances underlying the criminal charges and the facts and legal issues of the matter currently before the judge,” we concluded that “the judge’s impartiality cannot ‘reasonably be questioned’ (22 NYCRR 100.3[E][1]) solely on the basis of his/her prior role as District Attorney” (id.).  Thus, “[a] judge who is a former assistant district attorney need not disqualify from unrelated civil matters involving individuals who were investigated or prosecuted by the judge or his/her subordinates during the judge’s tenure” (Opinion 24-40).

          Conversely, where the facts of a prior criminal investigation or prosecution “appear to have some direct or material relevance” to the civil matter before the judge, disclosure of the connection is required “if the judge … concludes the facts and circumstances of the prior criminal matter are materially relevant to the [civil] case before the judge” (Opinion 14-10).  After disclosure, the judge may preside even if a party objects, provided the judge can be fair and impartial (id.).

          The civil case here, brought in the name of the People of the State of New York, concerns financial statements relating to the defendant’s real estate assets.  On the circumstances presented, we conclude that the judge’s prior assistance to the prosecution in a separate criminal matter against that very same defendant with a subpoena for financial documents is a “substantial connection” that must be disclosed to avoid any appearance of impropriety.  Thus, the judge must fully disclose the connection between the two cases, as well as the nature and extent of the judge’s involvement in the prior proceeding (see e.g. Opinions 23-107; 14-10).  After doing so, the judge has full discretion to preside, even if a party objects, as long as the judge is satisfied that he/she can be fair and impartial (see id.).  However, “if disclosure is impracticable in the judge’s court, the judge must disqualify” (Opinion 23-107).