Private Talks
The ethics rule regulating ex parte communications with judges sounds simple enough.
In the ABA Model Rules of Professional Conduct, which serve as the basis for most rules of professional conduct for lawyers, Rule 3.5(b) prohibits lawyers from communicating ex parte with judges and other court officials (as well as jurors and prospective jurors) during a proceeding, except as permitted by law or court order.
So far, so good. But determining precisely what constitutes ex parte contacts—and how the rule should be applied in the wider context of statutes, case law and court rules, and separate rules of conduct for judges—can be a daunting task.
The prohibition against ex parte communications with judges is designed to protect the opposing party’s right to a fair hearing and, ultimately, the impartiality and integrity of the courts. Communications are commonly understood to be ex parte if made by one party outside the record without giving the other party notice or an opportunity to respond. Besides in-person contacts, the rule covers communication by telephone, letter, e-mail and any other modes.
Lawyers should ensure that notice to opposing counsel is made in the same manner and time as the communication with the judge. The Philadelphia Bar Association’s Professional Guidance Committee, for example, determined in Ethics Opinion 98-15 (1999) that it was improper to fax or e-mail a communication to a judge while sending it to opposing counsel by regular mail.
The most vexing aspect of Rule 3.5(b) is whether a given communication falls within the rule’s “authorized by law” exception, which encompasses statutes, case law, court rules, court orders—and sometimes even other ethics rules.
In civil matters, a lawyer’s ex parte contacts with a judge sometimes are authorized by state or federal laws of civil procedure. Rule 65(b) of the Federal Rules of Civil Procedure, for instance, sets forth specific procedures for requesting a temporary restraining order from a judge on an ex parte basis. And in In re Jordan, 652 P.2d 1268 (1982), the Oregon Supreme Court dropped a disciplinary complaint against a lawyer who had obtained an ex parte restraining order against a spouse in a dissolution proceeding because a state statute specifically allowed judges to enter restraining orders without providing notice to opposing counsel.
In criminal cases, prosecutors may be authorized by statute to initiate ex parte contacts with judges for a variety of reasons, but some jurisdictions have determined that it may be necessary that the statute explicitly authorize the ex parte communication. The Ethics Committee of the North Carolina State Bar concluded in Formal Ethics Opinion 15 (2002), for instance, that a prosecutor who contacted a judge ex parte to attempt to reinstate a bond could not rely on a statute that generally allowed prosecutors to apply to judges “at any time” for modification or revocation of orders of release, since the statute did not explicitly permit the type of contact in question.
Attempts by prosecutors to gain an advantage over defense counsel by privately informing the judge about certain facts are universally condemned from an ethics standpoint.
OLD RULES, NEW RULES In addition to uncertainties over the authorized-by-law exception to Rule 3.5(b), jurisdictions disagree about whether prohibiting ex parte communications with judges should apply to all communications or only those that go to the merits of a case.
The divergence in thinking on this issue was reflected in the ABA Model Code of Professional Responsibility, which was superseded by the Model Rules in 1983. Section DR 7-110 of the Model Code, which correlates to Rule 3.5 of the current Model Rules, prohibited only those ex parte communications that went to the “merits of the case.” Model Rule 3.5 makes no such distinctions between procedural and substantive communications (providing they are permitted by law). Thus, whether a jurisdiction follows the old or new version of the rule may dictate whether certain ex parte contacts are permitted.
In addition to being familiar with the nuances of Model Rule 3.5, lawyers should be aware that judges have a corresponding—though not identical—duty regarding ex parte communications under Canon 3B(7) of the ABA Model Code of Judicial Conduct, which is widely followed by the states. (The Code of Conduct for United States Judges also contains a general prohibition against ex parte communications with parties or their attorneys.)
Under Canon 3B(7), judges must avoid initiating, permitting or considering ex parte communications about a pending or impending proceeding—with five exceptions.
First, judges, like lawyers, may participate in ex parte communications that are authorized by law (although the judicial rule states that the communication must be “expressly” authorized by law).
In addition, Canon 3B(7) allows judges to engage in ex parte communications for “scheduling, administrative purposes or emergencies,” providing they do not deal with substantive matters or issues on the merits; the judge reasonably believes the communications will not result in one party gaining a procedural or tactical advantage; and the judge provides the parties with adequate notice and an opportunity to respond.
Other exceptions allow judges, subject to specified limitations, to confer separately with the parties and their lawyers for mediation or settlement purposes; to procure the advice of a “disinterested expert” on a particular topic; and to consult with certain court personnel.
As with lawyers, the judicial ethics rules governing ex parte contacts vary by jurisdiction, and in concert with whatever version of the model rule that has been adopted in each jurisdiction. Although the current version of the Model Code of Judicial Conduct was adopted in 1990 by the ABA House of Delegates, some states still adhere to the language of an earlier 1972 version of the code. That version merely prohibited judicial initiation or consideration of “ex parte or other communications concerning a pending or impending proceeding, except as authorized by law,” but did enumerate exceptions as does the current version of the rule.
CHANGES IN THE OFFING Still more changes may be incorporated into the judicial ethics rules governing ex parte contacts if the ABA House of Delegates approves the broad-scale revisions to the code proposed by the Joint Commission to Evaluate the Model Code of Judicial Conduct. The House is expected to take up the commission’s recommendations in February during the midyear meeting.
The commission’s report is available at www.abanet.org/judicialethics. (The commission’s recommendations are discussed in another story in this issue, “Next Stop, House of Delegates,” on page 62.)
Lawyers are obligated to track the judicial ethics rules under ABA Model Rule 8.4, which makes it professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.”
Applying this standard, the Committee on Professional and Judicial Ethics of the State Bar of Michigan condemned the actions of a judge who took a case under advisement after the close of a trial and thereafter instructed his law clerk to contact counsel for the prevailing party to request findings of fact and conclusions of law. Michigan Informal Ethics Opinion RI-195 (1994).
The bar committee concluded that the judge’s ex parte contacts were not authorized by law since Michigan rules of procedure require that a lawyer who prepares an order present it to opposing counsel and allow seven days for objections. The committee also stated that, since the judge’s request violated Michigan’s version of the Model Code of Judicial Conduct, the lawyer was prohibited under Rule 8.4 of the ethics code for lawyers from knowingly assisting the judge in conduct that was a violation of the judicial code.
Since the lawyer who was asked by the judge to prepare the order was prohibited from performing the work without full disclosure to the other party, the ethics committee advised him to serve a copy on both the court and opposing counsel, inform the judge that he was doing so, and consider bringing the applicable rules to the judge’s attention.
MORE FROM MICHIGAN The Michigan ethics committee also addressed the question of whether the lawyer should inform the appropriate judicial disciplinary commission of any violations of the state judicial code by the judge who initiated the prohibited ex parte contact. Following the ABA Model Rules, Michigan’s Rule 8.3 (Reporting Professional Misconduct) directs lawyers to report judicial misconduct that raises “a substantial question as to the judge’s honesty, trustworthiness or fitness for office.” Failure to do so constitutes professional misconduct under Rule 8.4.
According to the Michigan committee, the answer may depend on the judge’s reaction when confronted with the violation. If the judge denies the recommendation or makes a practice of asking counsel to prepare findings ex parte, then the lawyer may be obligated to report the judge’s conduct, the committee stated.
Navigating two sets of evolving ethics rules while keeping in sync with all the authorized-by-law exceptions to the rules against ex parte communications with judges is clearly a tricky proposition for lawyers. Certainly, lawyers should think twice before “telling it to the judge” outside the presence of opposing counsel or at least without having given proper notice to opposing counsel that the communication will occur.
Kathryn A. Thompson is research counsel for the ABA Center for Professional Responsibility.
