In Matter of Soares v. Herrick (20 NY3d 139 [2012]), the Court of Appeals held that it was error to disqualify the District Attorney on the basis of a civil lawsuit that defendants brought against him during the pendency of the criminal proceedings. In Soares, the underlying alleged criminal acts involved the illegal sale of steroids and other prescription drugs. The grand jury returned an indictment against defendants and then the District Attorney obtained successive superseding indictments. After the fourth indictment, the court granted dismissal and denied leave to re-present. The People appealed the dismissal and, while the appeal was pending, defendants commenced a civil action in federal court in Florida against the District Attorney and his staff, claiming that their constitutional rights had been violated. On the District Attorney's appeal of the dismissal of the fourth indictment, the Appellate Division upheld dismissal but granted leave to re-present. The trial court granted dismissal of the ensuing fifth indictment with leave to re-present, but disqualified the District Attorney from further prosecution. The Court of Appeals reiterated the rule that the existence of a conflict of interest between the District Attorney and the defendant is not, by itself, sufficient to warrant disqualification of the District Attorney in the absence of actual prejudice or a substantial risk of prejudice (Matter of Soares, 20 NY3d at 146). In Soares, there was no showing of any prejudice in connection with the fifth indictment, particularly since the charges contained therein were virtually identical to the charges contained in the fourth indictment, which had been obtained well before the civil suit was commenced (id.). The Court concluded that defendant's reliance on the District Attorney's "personal, professional and financial stake in the outcome of both the civil and criminal cases" involved only a claim of a potential for prejudice, short of the required showing of the sort of actual prejudice needed to obtain the exceptional relief of displacing an elected District Attorney (id. at 146-147). The Court was careful to refrain from holding that a civil lawsuit commenced by a criminal defendant against an elected district attorney would never warrant the district attorney's disqualification; it held only that disqualification was not warranted on the facts presented.