OPINION NO. 87-17

• Jurisdiction: Arizona

July 27, 1987

FACTS:

The inquiring attorney serves as an administrative law judge. He does not have a secretary. As a consequence, he must do all his own scheduling of appointments, issuing subpoenas, setting deadlines for filings, and accepting such filings. He is concerned because our Opinion No. 87-2 prohibits all ex parte contact between lawyers participating in a case and judges therein, including administrative law judges. He would like to be able to contact lawyer directly for the limited purpose of scheduling hearings or performing other ministerial or clerical tasks.

QUESTION:

May an attorney have ex parte communications with a hearing officer or administrative law judge, whether such contact is initiated by the attorney or the administrative law judge, for purposes of resolving procedural matters, so long as the merits of any case are not discussed?

ETHICAL RULE INVOLVED:

ER 3.5 (b). Impartiality and Decorum of the Tribunal

OPINION:

ER 3.5 (b) of the Rules of Professional Conduct prohibits a lawyer from communicating ex parte with a judge except as permitted by law. This rule is identical to A.B.A. Model Rule 3.5 (b). A review of Arizona cases reveals no case which expressly permits ex parte communication for ministerial or clerical purposes. In McElhanon v. Hing, 151 Ariz. 403, 728 P.2d 273 (1986), certain examples of ex parte communications which were permitted by law were listed. These exceptions include contacts authorized by A.R.S. §§ 14-3301 et seq.; A.R.S. § 12-213 (A); Rule 65 (d), Rules of Civil Procedure (16 A.R.S.); and the federal bankruptcy act, 11 USCA §§ 101 et seq.

Cases in other jurisdictions have dealt primarily with DR 7-110 of the Code of Professional Responsibility, the predecessor to current ER 3.5 (b). Most of...