Writing to District Attorney in Behalf of Former Client Who May Have Been Wrongfully Convicted

September 1, 2004

CJE Opinion No. 2004-7

Before your appointment to the bench, you were a trial lawyer in private practice and represented a number of clients charged with murder. One of your clients was prosecuted for murder in the first degree and convicted by a jury of murder in the second degree. He is currently serving a life sentence. You state in your request for advice that, of all the murder cases you tried, you believe that only this one conviction was the result of a miscarriage of justice.

Your client appealed his conviction, and the Appeals Court reversed on the ground that the jury had been subjected to extraneous information. The Supreme Judicial Court, on further appellate review, affirmed the conviction.

You state in your request for advice from this committee that you wish to write to the current District Attorney, who, in conjunction with other District Attorneys, has recently set up a mechanism to review old cases that may have resulted in wrongful convictions. You ask whether you may write such a letter. You have appended to your request the letter that you propose to send to the District Attorney (with copies to your former client, the trial judge, and the paralegal who assisted you on this case, who is now an attorney in private practice).

You also indicate that you believe that you would need the former client's agreement to send such a letter, and, assuming that he would readily agree, you ask whether you may meet with him. You state that you considered contacting your former paralegal, now an attorney, and asking him to write to the District Attorney in the client's behalf -- and you recognize that the former client himself could petition the District Attorney's reviewing committee -- but you decided against that option because you believe that you, as the trial attorney, ought to be the one to bring this to the attention of the District Attorney.

In your proposed letter to the District Attorney you state that: there was no definitive scientific evidence, such as DNA or fingerprints; the prosecution relied on questionable eyewitness identifications; you, as part of your trial preparation, were able to identify a person who had, three months prior to the murder, shot at and struck the victim; you turned this information over to the authorities, who did not investigate your lead; and you also obtained information pointing to someone other than your client as the real murderer, but your information was of the sort that you characterize as unreliable, inadmissible, "word on the street" variety.

You propose to ask the District Attorney, if he is reviewing cases, to add your client's case to the list; to consult with the former assistant district attorney who prosecuted the case, with the trial judge, and with the attorney who assisted you (as a paralegal) in the trial. As stated above, you indicate in your request for advice that, before sending a letter to the District Attorney, you would contact your former client to ensure that he welcomes your letter and agrees to your sharing the defense file with the prosecutor's office.

Your inquiry principally implicates Sections 2 B and 4 G of the Code of Judicial Conduct. Section 4 G provides, in relevant part, that "[a] judge shall not practice law." Section 2 B provides, in relevant part, that:

"A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness in an adjudicatory proceeding."

Because the Code of Judicial Conduct prohibits all judges from practicing law, any judge's former clients must, perforce, be represented by other counsel after a judge assumes the bench. A client should not be penalized because his former attorney has become a judge, nor should the client be benefited by the fact that his former attorney is a judge.

The committee is of the opinion that you may not meet with the former client, who is still incarcerated, without violation of Section 4 G of the Code. Meeting with another individual, particularly someone whom you represented before becoming a judge, to discuss a course of action that you propose, a course of action that is related to the subject of the former representation, and a course of action that may affect the former client's legal rights is, in the committee's view, to engage in the practice of law.

From the text of your proposed letter, it appears that your former paralegal, now an experienced attorney, is not only able but may be willing to assist the former client in the effort to seek review of his case by the District Attorney. We think that you may confer with your former paralegal to enlist him in your former client's cause without implicating the Code. We, therefore, need not address the question of what a judge may or may not do in behalf of a former client who is unrepresented by successor counsel.

The committee is also of the opinion that your proposed letter to the District Attorney would clearly implicate Section 2 B, particularly where you intend to write:

"I realize that, given my current position, one might be inclined to treat this request differently than other similar requests. I know, however, given our past dealings, when I was a defense attorney and you the prosecutor, you will not do so, treating this matter as you treat all such similar inquiries, in a fair, competent and non-prejudicial manner."

That language could have an opposite effect from your stated intention and could easily be misconstrued by the reader as drawing attention to your current status as a judge. Your purpose, of course, is to advance the private interest of your former client, whom you genuinely believe was wrongfully convicted. Your hope is that the District Attorney's office will view your request favorably, and will review its file and your client's file with the goal of reopening the case. See generally, J.M. Shaman, S. Lubet and J.J. Alfini, Judicial Conduct and Ethics § 5.03, at 164 (3rd ed. 2000), for a discussion of cases in which judges have been subjected to discipline for attempting to exert their influence on prosecutorial decisions.

Your letter, although not in the form of sworn testimony, would implicate the prohibition against voluntarily testifying as a character witness. In CJE Opinion 2000-5, the committee concluded that a judge's proposal to write a letter supporting the reinstatement of a disbarred lawyer was prohibited by Canon 2 (B), the predecessor of Section 2 B of the current Code. We stated that we saw "no difference between providing information in a judicial proceeding under oath and providing it in unsworn letter form."

The committee concludes, therefore, that you may not write the proposed letter. Having said that, the committee believes that you and your former client are not without recourse in the matter. A judge has a duty to see that justice is done and, as stated in the Preamble to the Code of Judicial Conduct, judges "must strive to enhance and maintain confidence in our legal system." In a case such as that of your former client, whom you genuinely believe the legal system has failed, there must be a vehicle, consonant with the Code of Judicial Conduct, for the facts of the case, known by you, to be brought forward.

In CJE Opinion 2001-2, a judge asked whether he might sign an affidavit intended for filing in the Superior Court in support of a motion for a new trial in behalf of a former client, who was then represented by new counsel. In that opinion we stated:
     

"Canon 2 (B)'s prohibition on voluntary proffers of character testimony does not prohibit signing or submitting to a tribunal an affidavit containing factual, material information about which a judge has percipient knowledge. Nor, in the Committee's view, does the signing or submission of such an affidavit impermissibly lend the prestige of judicial office to aid the private interests of litigants. Appointment to judicial office simply does not prevent a judge from giving relevant factual testimony in a judicial proceeding when he or she is competent to do so. That is particularly true when, as is apparently the case here, the judge has particular knowledge of relevant matters that is unavailable from any other source."

The advice in Opinion 2001-2 applies equally to your situation. Where another attorney (your former paralegal) may be available to assist your former client, and he and the client would have control of the client's file, the client's potential rights and access to the legal system are adequately protected without your advocacy in his behalf. To the extent that you have factual information relevant to the case, you may provide it to your client's new counsel for use in future efforts to secure a new trial or other relief for the client. Your information may come from your memory or from your review of your file, and may be in affidavit or other form. As in Opinion 2001-2, you should be mindful of the provisions of Section 2 A (formerly Canon 2 [A]) of the Code, which provides that: "[a] judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Accordingly, you should take care that anything you sign is scrupulously true, accurate, and complete.

Finally, it goes without saying that, if your former client's case is reopened, you must recuse yourself from any proceeding concerning it, in accordance with Section 3 E (1) (a)-(e) of the Code.