Ex Parte Communications With a Tribunal: from Both Sides

• Publication year: 2000
• Pages: 55

29 Colo.Law. 55 Colorado Lawyer 2000.

2000, April, Pg. 55. Ex Parte Communications with a Tribunal: From Both Sides

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55

Vol. 29, No. 4, Pg. 55

The Colorado Lawyer
April 2000
Vol. 29, No. 4 [Page 55]

Specialty Law Columns
The Ethics Column
Ex Parte Communications with a Tribunal: From Both Sides
by Alec Rothrock

In March 1999, in the case of Aztec Minerals Corp. v. State of Colorado,1 the Colorado Court of Appeals affirmed an award of attorney fees to government defendants over the plaintiffs' objection that the attorney fee order was the product of an improper ex parte communication between the judge and the defendants' counsel. After a telephone hearing on the attorney fee issue, the trial judge telephoned defendants' counsel ex parte to "inform him that it had decided to grant the motion and to direct him to draft a proposed order."2 Defendants' counsel did so serving a copy of the proposed order on plaintiffs' counsel. The Court of Appeals held that this brief ex parte contact, which did not touch on the merits of the case, also did not demonstrate partiality or bias on the part of the trial judge so as to warrant vacation of the attorney fee order.3

Aztec Minerals breaks no new ground. However, the case does raise larger issues about what constitutes an ex parte communication; when (if ever) ex parte communication is appropriate; how to avoid ex parte communications; and how to handle them when they occur. This article approaches the subject both from the side of the attorney and from the side of the judge or other official, because understanding the ethical obligations of the other communicant can be just as important as understanding counsel's own ethical obligations

The Rules

Colo.RPC 3.5(b) states that lawyers shall not "communicate ex parte with [a judge, juror, prospective juror, or other official] except as permitted by law." This rule was adopted verbatim from the American Bar Association's ("ABA") Model Rules of Professional Conduct Rule 3.5(b). Colo.RPC 3.5(b) applies to Colorado lawyers in state courts and the U.S. District Court of Colorado.4 Notwithstanding the Colorado Model Rules Committee's characterization of Colo.RPC 3.5 as "very similar to present Code provisions,"5 Colo.RPC 3.5(b) represents a syntactical and substantive departure from the former Colorado Code of Professional Responsibility's Disciplinary Rule (DR) 7-110(B).6

The Colorado Code of Judicial Conduct ("CJC") contains a provision corresponding to Colo.RPC 3.5(b), but the provision is not perfectly consistent with Colo.RPC 3.5(b). CJC Canon 3(A)(4) states that a judge should "except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding." Canon 3(A)(4) was adopted verbatim from the 1972 ABA Code of Judicial Conduct, which Colorado still follows despite the ABA's promulgation of the 1990 Model Code of Judicial Conduct ("1990 Model Code"). Notwithstanding the aspirational language of CJC Canon 3(A)(4), Canon 8(A) states that "[a]ll judges shall comply with all provisions of this code except as provided for in this Canon 8."7 Canon 3(A)(4) of the Code of Conduct for United States Judges ("U.S. Code of Conduct") states that a judge should "neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." Conduct in violation of these canons may result in discipline pursuant to the Judicial Councils Act of 1980.8

Deconstructing the Rules

An ex parte communication is a "communication about a case which an adversary makes to the decisionmaker without notice to an affected party."9 A written communication that is simultaneously served on all other parties to an adversary proceeding is not an ex parte communication.10 Similarly, "[a] judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested."11 Notice is the common denominator.

In one case, a telephone hearing over a discovery dispute went forward despite the absence of one party's counsel, who had left opposing counsel's office knowing that opposing counsel was telephoning the court to schedule the hearing. The court rejected the absent attorney's subsequent argument that the hearing constituted an improper ex parte hearing, reasoning that absent counsel had received notice of the hearing. "[The telephone hearing] was thus no different from innumerable other instances in which one party fails to show up for a motion or status hearing held on the record."12

In another case, an attorney left the courthouse believing that she and opposing counsel had reached an agreement to continue a scheduled hearing. When the case was called, opposing counsel won all three motions heard by the court. Those rulings were affirmed on appeal. "[E]ven if some agreement existed between the attorneys, there is nothing in the record to illustrate that the [trial judge] had any such knowledge."13

Judicial Incommunicado

Colo.RPC 3.5(b) does not define a "judge" or "other official" with whom ex parte communications are prohibited. However, the term "judge" has been held to include administrative law judges and hearing officers.14 Party-nominated private arbitrators are probably not within this proscription; however, arbitrators in court-ordered arbitration or arbitration otherwise subject to state rules of procedure probably are within this proscription.15 The phrase "other officials" has been held to include members of statutory medical malpractice review panels16 and judicial law clerks.17 A Minnesota attorney was admonished for leaving a message with a judge's clerk about allowing the attorney's client to appear at a telephone hearing. The attorney then left a proposed order to that effect, which the judge entered.18 Similarly, a Chicago attorney engaged in improper ex parte communications when, during a break in a hearing, he obtained a letter from a federal magistrate through the magistrate's clerk that supported the attorney's version of a discovery dispute.19

The Colorado CJC, on the other hand, is applicable to "[a]nyone, whether or not a lawyer, who is an officer of the state court system performing judicial functions, including, for example, a referee or commissioner."20 Similarly, the U.S. Code of Conduct is applicable to "[a]nyone who is an officer of the federal judicial system performing judicial functions."21 Private arbitrators, law clerks, and other non-decisionmakers are probably excluded from these definitions.

Many judges, especially in the federal system, prohibit their law clerks from communicating with counsel in pending matters, on the theory that the law clerks are agents of the judge (more so, presumably, than judges' secretaries). Indeed, unlike CJC Canon 3(A)(4), the Commentary to Canon 3(A)(4) of the U.S. Code of Conduct states that a judge "should make reasonable efforts to ensure that this provision is not violated through law clerks or other staff personnel."22 Finally, rules specific to a tribunal may prohibit or regulate ex parte communications.23

Other Communications

Legal and judicial ethics rules on ex parte communications are not limited to communications between the court and other parties or their counsel. A Vermont attorney received a private admonition for calling a judge, with whom the attorney had had a prior professional relationship, to confirm a rumor about the judge's sentencing philosophy that the attorney had heard from his nonparty client, the anxious mother of a crime victim.24 An Oklahoma lawyer was reprimanded for sending a letter to a judge, in the lawyer's capacity as a member of Stop Child Abuse Now, that discussed the facts of a pending child abuse case and intended to influence the outcome. The Oklahoma Supreme Court held that the lawyer did not violate Oklahoma Rule 3.5(b) because that rule applied only to lawyers acting as legal advocates. However, the conduct did violate Rule 8.4(d), which prohibits conduct prejudicial to the administration of justice.25

The Commentary to Canon 3(A)(4) of both the CJC and the U.S. Code of Conduct states that Canon 3(A)(4) "includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding. . . ." A New York judicial advisory opinion concluded that a judge should not consider a letter from a bar association expressing an opinion about a criminal proceeding pending before the judge.26 The Wisconsin Supreme Court found that a Milwaukee County circuit judge engaged in improper ex parte communications with a law professor friend who, on weekends for no pay, regularly consulted with the judge on pending dispositive motions, prepared draft opinions, and otherwise acted like a law clerk.27

Judges also are not allowed to engage in independent fact-finding. It was improper for a Colorado judge to engage in ex parte communications with a victim-witness coordinator concerning the emotional state of a victim-witness.28 It is not permissible for a judge (after a guilty plea but before sentencing) to solicit an ex parte communication from crime victims or their relatives.29 Judges may not communicate with occurrence30 or expert31 witnesses in a pending case, even to encourage reluctant or nervous witnesses to testify.32 Judges may not independently review law enforcement files not admitted into evidence.33 It was improper for a trial judge to direct his law clerk to observe the operation of a machine involved in a pending controversy.34 The West Virginia Supreme Court...