Opinion 07-153

October 18, 2007

Digest:         In the absence of a subpoena, a judge may, but is not required to, provide affidavits that a former client and a district attorney have requested concerning the former client’s CPL Art. 440 post-judgment motion.

Rules:          CPLR §4503; CPL Art. 440; 22 NYCRR 101.1; 100.2(C); Opinions 04-67; 98-118 (Vol. XVII); 95-148 (Vol. XIII); 90-26 (Vol. V); 89-76 (Vol. IV); 89-73 (Vol. III);.

Opinion:

         Both a district attorney and a criminal defendant that a judge represented in his/her former capacity as a “public defender” with a legal services provider have asked the judge to submit an affidavit related to the criminal defendant’s CPL art. 440 post-judgment motion.

         A judge may provide an affidavit and/or testify as a fact witness in a proceeding when he/she has personal knowledge of facts in dispute (see Opinions 04-67 [a judge may provide an affirmation concerning a durable power of attorney that the judge prepared as a private attorney before assuming the bench]; 98-118 [Vol. XVII] [a judge may provide an affidavit and testify as a fact witness regarding an accident that the judge witnessed]; 90-26 [Vol. V] [a judge may testify as a witness in a trial where the judge’s daughter is a party]; 89-76 [Vol. IV] [a judge may testify in a Surrogate’s Court proceeding to protest his/her in-law’s will concerning the judge’s conversations with his/her in-law and the judge’s observation’s of his/her in-law’s demeanor]).

           While a judge may only provide a character reference pursuant to a subpoena or in response to an official request from an entity such as a court, district attorney, probation or parole department (see 22 NYCRR 100.2[C]; Opinion 89-73 [Vol. III]), no such mandate is required for a judge to testify as a fact witness (see Opinions 98-118 [Vol. XVII]; 90-26 [Vol. V]; 89-76 [Vol. IV]). Nevertheless, it is preferable that a judge do so pursuant to a subpoena (id). And, in the absence of a subpoena, a judge may decline to provide an affidavit or to testify (see Opinion 95-148 [Vol. XIII]).

         Subject to the limitations already mentioned, therefore, the judge in the present inquiry may, but is not required to, provide the affidavits requested by the judge’s former client and the District Attorney. The judge must, however, refrain from disclosing information protected by the attorney/client privilege (see CPLR §4503) or any other legal privilege to which his/her former client is entitled, unless the client has waived the privilege or unless a court orders the judge to disclose such information.

         This Committee is authorized to issue opinions to judges “...related to ethical conduct, proper execution of judicial duties, and possible conflicts between private interests and official duties” (22 NYCRR 101.1). The judge’s question concerning representation should he/she be called to testify is legal in nature, and therefore outside this Committee’s jurisdiction.