Opinion 25-124(A)

September 10, 2025

Facts/Issue:    The inquiring judge has been subpoenaed for a deposition in civil litigation, concerning a matter the judge previously handled as an assistant district attorney.  The plaintiff is suing the police department that arrested him/her, claiming that the police engaged in improper actions that led to his/her conviction.  There are no claims against the District Attorney’s office, and the judge is involved only as a witness or potential witness, not a party.  As the testimony involves his/her former official duties as an assistant district attorney, the judge is represented by an assistant county attorney in the civil litigation.  The judge asks about his/her obligations when attorneys from the County Attorney’s office and the District Attorney’s office appear. 

Discussion:     In our view, the situation is fully addressed by Opinion 22-168, notwithstanding that the present inquirer is being represented as a witness rather than a party. 

Conclusion:     Where a judge is represented by an assistant county attorney as a witness concerning a matter the judge handled during his/her former employment as an assistant district attorney:

(1) During the representation, the judge is disqualified, subject to remittal, from matters involving the specific county attorney who represents the judge.  

(2) After the representation concludes, the judge may preside in matters involving that attorney, provided the judge can be fair and impartial.  Disclosure of the former attorney-client relationship is discretionary.  

(3) Both during and after the representation, the judge has no obligation to disclose or recuse with respect to other county attorneys not involved in representing the judge. 

(4) The judge’s representation by an assistant county attorney creates no obligation to disclose or disqualify in matters involving the District Attorney’s office.

Authorities:  Opinion 22-168.