Opinion 22-190

February 2, 2023

Digest:         A full-time judge whose former client has discharged initial successor counsel and retained entirely new counsel may meet with the new attorneys and the former client to discuss records relating to the former representation, but must not offer legal or tactical advice.

Rules:          NY Const art VI, § 20(b)(4); 22 NYCRR 100.2; 100.2(A); 100.4(G); Opinions 17-161; 11-96; 95-116; 95-20.

Opinion:

         On assuming the bench, the inquiring full-time judge transferred a pending case to another attorney. The judge’s ex-client became extremely dissatisfied with the representation and has now retained entirely new counsel. The former client has asked the inquiring judge to meet directly with the new attorneys in order to “review and explain the many boxes of documents which comprise the file in the litigated matter.” The inquiring judge asks if it is ethically permissible to do so, and whether the ex-client may also attend the meeting.

         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 full-time judge “shall not practice law” (22 NYCRR 100.4[G]).¹

         We have 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 a need 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 to provide similar factual information not subject to privilege (see Opinion 17-161). We also said that a judge may respond to factual inquiries from a former client who is seeking information that might be relevant to a contemplated motion to vacate the conviction (see Opinion 95-116). In essence, we concluded that providing strictly factual information, akin to a fact witness, “would not constitute the giving of legal advice or the practicing of law” (id.). 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).

         Therefore, we conclude this judge may meet with the new attorneys to review and provide factual information concerning the case files, and there is no prohibition against the ex-client attending the meeting as well. However, the judge must not offer any legal or tactical advice to assist in the litigation.

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¹ For a “judge of the court of appeals, justice of the supreme court, judge of the court of claims, judge of a county court, judge of the surrogate’s court, judge of the family court or judge of a court for the city of New York established pursuant to section fifteen of this article” (NY Const art VI, § 20[b]), the ethical prohibition is further buttressed by a constitutional prohibition on “engag[ing] in the practice of law” (id. § 20[b][4]).