Opinion 25-73

May 15, 2025

Digest: Where a case the judge had prosecuted before assuming the bench is now in post-conviction proceedings, the judge:

            (1) may provide a factual affidavit stating that the judge never suborned perjury and that the witness never gave the judge reason to question the validity of the prosecution;

            (2) may discuss his/her recollections and other historical information about the case with a successor assistant district attorney, but may not offer any legal or tactical advice; and

            (3) may testify as a fact witness in post-conviction proceedings, either voluntarily or pursuant to a subpoena.

Rules:   22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(G); Opinions 18-22; 17-161; 11-96; 07-153; 95-116; 95-20.

Opinion:

          A full-time judge who served as an assistant district attorney before assuming the bench has been asked to provide an affidavit regarding a criminal case that he/she prosecuted, which is now in post-conviction proceedings.  Accordingly, the judge asks if he/she may (1) provide an affidavit stating that the judge never suborned perjury and that the witness never gave the judge reason to question the validity of the prosecution, (2) discuss the case with the currently assigned assistant district attorney, and (3) testify in a hearing on the defendant’s motion to set aside the conviction, either at the prosecution’s request or pursuant to a subpoena.

          A judge must always 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 22 NYCRR 100.2[A]).  A judge may not lend the prestige of judicial office to advance the private interests of the judge or others and may not testify voluntarily as a character witness (see 22 NYCRR 100.2[C]).  A full-time judge may not practice law (see 22 NYCRR 100.4[G]).

We have said a “judge may voluntarily provide an affidavit and/or testify as a fact witness in a proceeding when he/she has personal knowledge of facts in dispute” (Opinion 07-153).  Thus, a full-time judge “may voluntarily serve as a fact witness concerning his/her former representation of a client” (Opinion 18-22 [citing many prior opinions]).

          Relatedly, we advised that a judge who prosecuted a criminal matter before assuming full-time judicial office may “review the file and provide historical information” to the current prosecutor assigned to the re-trial, but “must not offer legal or tactical advice” to assist the prosecutor (Opinion 11-96; see also Opinion 95-20 [recognizing “an obligation to make available information to the successor lawyers and to assist in the transition”]).  Indeed, a judge who previously prosecuted a criminal case may, but is not required to, meet with attorneys seeking to vacate that conviction and provide them with unprivileged factual information (see Opinion 17-161; see also Opinion 95-116 [judge who was a criminal defense attorney may respond to factual inquiries from a former client who hopes to move to vacate the conviction]).  Of course, in any such interactions or discussions, the judge “may review the file but may not act as or be the lawyer” (Opinion 95-20).  In our view, providing strictly factual information concerning a former representation, akin to a fact witness, “would not constitute the giving of legal advice or the practicing of law” (Opinion 95-116). 

Here, too, we conclude that the judge may testify as a fact witness, either voluntarily or pursuant to subpoena.  Thus, the judge may provide a factual affidavit stating that the judge never suborned perjury and that the witness never gave the judge reason to question the validity of the prosecution and/or testify in post-conviction proceedings.  The judge may also meet with and discuss the case with the assigned assistant district attorney, offering his/her recollections and other historical information, but may not offer any legal or tactical advice.