Opinion 17-161

December 7, 2017

Digest:         A judge who had, as an assistant district attorney, prosecuted a case in which the DA’s office now seeks to reevaluate the conviction may, but is not required to, meet with attorneys seeking to vacate that conviction. The fact that the judge has met with the prosecutorial office that is currently re-investigating the case does not change the analysis.

Rules:          22 NYCRR 100.1; 100.2; 100.2(A); Opinions 13-53; 11-96; 95-148; 95-20; 91-137; 90-26; 89-76; 88-155.

Opinion:

         The inquiring judge, who previously served as a prosecutor, has met with his/her former employer’s conviction integrity unit to discuss historical facts concerning a case the judge had tried as a prosecutor.¹ During the interview, the judge and attorneys from the prosecutor’s office discussed the judge’s recollection of his/her “assessment of the evidence and [his/her] trial strategy.” Subsequently, the judge was contacted by attorneys seeking to vacate the conviction. They sought to conduct their own interview with the judge. Having already discussed the matter with the prosecutor’s office, the judge asks if he/she may, or must, also submit to an interview with a defenders’ organization that hopes to exonerate the defendant.

A judge must uphold the integrity and independence of the judiciary (see 22 NYCRR 100.1), avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).

         We have advised that judges may submit to interviews as fact witnesses voluntarily (see e.g. Opinions 90-26; 89-76). For example, a judge who prosecuted a criminal matter before assuming judicial office may review the file and provide historical information to the current prosecutor, as long as he/she does not offer legal or tactical advice to assist the prosecutor (see Opinions 11-96; 95-20). Critically, we have also advised that a judge who previously represented the defendant in a criminal case may voluntarily “give a statement or affidavit requested by an Assistant D.A. concerning [that] case,” provided he/she does not improperly disclose any privileged information (Opinion 13-53; cf. Opinion 91-137 [judge who previously “negotiated an employment agreement on behalf of a client/actor” may issue a declaration concerning the facts and circumstances involved in the agreement at the employer’s request]). Thus, we conclude this judge may likewise meet with a defenders’ organization concerning the case, subject to the same limitations.

However, a judge’s decision “to be interviewed by counsel for any or all parties to a proceeding prior to an appearance is personal and not ethical in nature” (Opinion 95-148 [ellipsis omitted], quoting 88-155). Especially where, as here, the judge’s sole involvement in the case was as a prosecutor, there is no ethical requirement for the judge to submit to an interview with a defenders’ organization about the case merely because the judge has spoken with the prosecutor’s office about it.

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¹ The prosecutor’s office told the judge they were re-investigating the case at the request of a defenders’ organization that hopes to exonerate the defendant.