Kansas Bar Journal
Vol. 73 No. 5.
Thinking Ethics: Divining the Secret
Vol. 73 No. 5 May 2004Thinking Ethics: Divining the SecretBy Professor Sheila ReynoldsSurely all lawyers know that it is unethical to engage in ex parte conversations about the merits of a pending matter with a judge.(fn1) A similar ethical prohibition applies to judges.(fn2) Nonetheless, there is anecdotal evidence that some private conversations between lawyers and judges take place, perhaps for perceived efficiency or just carelessness. Lawyers or judges who are tempted to ignore the ethical the ethical constraint may find it beneficial to reflect upon the reason prompting the prohibition, which are set forth by the Kansas Supreme Court in State v. Scales.(fn3) The purpose of the ex parte rule is to protect parties' due process rights to a fair trial. One-sided, private conversation with the judge may compromise these rights in various ways: (1) they deprive the absent party of the right to respond an be heard; (2) the information given to the judge may be incomplete and inaccurate; (3) the judge will be exposed to one-sided argumentation, which carries the risk of erroneous ruling on the law or facts; and (4) such communications are an invitation to improper influence if not outright corruption. (fn4)
Although evidence and argument will usually be presented in the course of official proceedings, it may on occasion be appropriate or necessary to communicate in writing with the judge on a pending matter. This is permitted by the ethics rule, as long as a copy is promptly delivered to opposing counsel or adverse parties if unrepresented. When the court receives written communications fro counsel or written reports from court services, and copies are promptly available to all parties, due process is not compromised because the parties know what the court knows, and they have the opportunity to dispute the alleged facts and issues.
The prohibition on ex parte communications about pending matters applies to all lawyers, not just to lawyers for interested parties. Thus it is unethical to discuss pending matters with judges on social occasions or in general conversation.(fn5)
Some communications are not prohibited, because they are not about the merits of the matter, such as whether a lawyer for a party intends to file...