Opinion 95-116

September 21, 1995

Digest:         A judge may inform his/her former client of whatever facts are known to the judge and are relevant to the former client's potential motion to vacate a prior judgement of conviction based on the prosecutor's  alleged failure to make certain disclosure.

Rule:            Code of Judicial Conduct, Canon 5 (F)

Opinion:

         A judge assigned to hear criminal cases and who was previously a criminal defense attorney inquires whether he/she may respond to questions put to the judge by a former client. Specifically, the former client seeks information that might be useful in connection with an anticipated motion pursuant to Criminal Procedure Law §440.10. The judge's former client apparently believes that the prosecutor in his criminal trial failed to make certain disclosures, and wishes to learn whether the judge's recollection of events and/or the content of the judge's closed files might support this contention.

         Nothing in the relevant Canons or Rules prohibits the judge from answering the factual inquiries of former clients. The judge's role in doing so would be essentially that of a witness, and would not constitute the giving of legal advice or the practicing of law (cf. Code of Judicial Conduct Canon 5 [F]). However, the judge may not act as or be the lawyer for the ex-client. See Opinion 95-20.