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Letters to the Court: Let the Lawyer Beware!

January 01, 1997-The Michigan Rules of Professional Conduct prohibit ex-parte contacts with or attempts to influence judge or juror: "A lawyer shall not (a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law; (b) communicate ex parte with such a person concerning a pending matter, except as permitted by law . . . ." MRPC 3.5. A leading legal-ethics text states that the rule "requires little comment," apparently because it embodies the simple notion of fair play: "[T]he adversary system is based on the assumption that equals will meet in fair contest before a neutral tribunal" and "[u]nauthorized ex-parte contacts with a trier of fact . . . directly will undermine the system, for they deprive the opposing party of an opportunity to respond."1 Most lawyers might agree, and the examples of forbidden contacts that come to mind support the rule's apparent simplicity. A leading legal-ethics casebook does not contain any material regarding prohibited contacts.2 In compliance with this rule lawyers copy judges with letters sent to opposing counsel, or send letters directly to the judge and copy opposing counsel. Although some judges discourage such correspondence, letters that are copied to opposing counsel are not, by definition, ex-parte.

The rule's simplicity has perhaps prevented lawyers from realizing the significance of the comment to the rule which cautions that in addition to avoiding conduct prohibited under that rule, "[a] lawyer is required to avoid contributing to a violation" of the Code of Judicial Conduct. Relying upon the Code of Judicial Conduct, the Michigan State Bar's Standing Committee on Professional and Judicial Ethics (Committee) has issued an opinion that declares unethical letters to the judge that discuss the substance of actions pending before the court, even if copied to opposing counsel. Michigan Ethics Opinion RI-243 (October 5, 1995).3 In Opinion RI-243, defense counsel asked about the propriety of the following situation. Defense counsel obtained the conditional release of defendant, a habeas petitioner. Pretrial Services must notify the court of any violations of the release conditions. Opposing counsel wrote Pretrial Services about defendant's arrest while on release, and copied the judge and defense counsel. No charges resulted from defendant's arrest.4

The Committee noted that because the letter was copied to opposing counsel, it was not ex parte and therefore not prohibited by Rule 3.5(b). But the Committee stated that the letter was "other communication made to the judge outside the presence of the parties" under Rule 3A(4) of the Michigan Code of Judicial Conduct. That rule provides:

(4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:

(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:

(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and

(ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.

* * *

(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

The letter did not fit within the exceptions to this rule. The letter was not initiated by the judge or directed merely to court personnel, nor was the author disinterested. The Committee concluded that the letter was improper:

A letter addressing the substance of a pending matter, which is directed to or copies the presiding judge, is improper even if the opposing counsel is contemporaneously sent a copy of the same letter. Traditional ways of communicating with a judge about the substance of a pending matter are pleading and oral argument. We are unaware of any court rule, statute, or other legal authority which authorized communication with the presiding judge in any other manner.

[Opinion RI-243.]

Thus, correspondence or other communication that is outside the presence of all parties and that addresses "substantive matters or issues on the merits" is unethical. The scope of the prohibition is potentially large. "Merits" has been interpreted to include matters that might indirectly affect how the judge might rule.5 The meaning of "substantive matters" seems to encompass all but the explicitly allowed ex parte communications for "scheduling, administrative purposes, or emergency matters" (but if the party will gain a procedural or tactical advantage letters for those purposes are declared unethical).

While the Code of Judicial Conduct does not apply to mere attorneys, the duties of the Code of Judicial Conduct and the Rules of Professional Conduct are "reciprocal." Opinion RI¡243. MRPC 8.4(c) prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and MRPC 8.4(e) prohibits a lawyer from knowingly assisting a judge in conduct that is a violation of the Code of Judicial Conduct. Thus, the duties of the Rules of Professional Conduct and Code of Judicial Conduct are reciprocal: if the conduct is "prohibited to the judge" it is "prohibited to the lawyer if it would cause a violation by the judge." Opinion RI¡243 (citing Opinion 96). Accordingly, in considering the appropriateness of a contact with the court, a lawyer must also consider Code of Judicial Conduct and cases interpreting it.6

Ethics opinions do not, of course, "have the force and effect of law," but "[t]o the extent the Committee does a professional job in researching the reasoning the opinions issued . . . the work of the Committee is well-respected by the courts and disciplinary agencies of the states."7 The Attorney Discipline Board takes a dim view of ex-parte contacts.8 In addition, a violation of the Code of Judicial Conduct may lead to mistrial or disqualification.9 As bench and bar become more aware of the scope and reciprocal duties of the Code of Judicial Conduct and Rules of Professional Conduct, we can expect more judges to insist that attorneys observe the prohibitions of the Code of Judicial Conduct in their dealings with the court.

Notes

1 Geoffrey C. Hazard & W. William Hale, The Law of Lawyering: A Handbook on The Model Rules of Professional Conduct at 658 (2d ed. 1990).

2 Geoffrey C. Hazard, Jr., The Law and Ethics of Lawyering (2d ed. 1994). Thankfully, a forthcoming article on contacts with judges by Marcia Proctor will appear in her Counsel's Corner column in the November 1996 issue of the Michigan Bar Journal. I wish to thank Ms. Proctor for sharing a draft of that article.

3 The Opinion is available from the Committee or on Westlaw, 1995 WL 813841.

4 The Committee stated that it did not directly address the propriety of opposing counsel's conduct because the committee does not have jurisdiction to discuss either the conduct of someone other than the inquirer or the inquirer's past conduct. Based on the Committee's jurisdiction over judicial conduct it issued the opinion.

5 For example. a prosecutor who contacted a judge to seek a reduction in the amount of defendant's bail so the defendant could serve as an informer was held to have improperly influenced the judge. In re Burrows, 629 P. 2d 82 (Ore. Sup. Ct. 1981) (interpreting the Code of Professional Responsibility). See generally Annotation, Disciplinary Action Against Attorney Based on Communication to Judge Respecting Merits of Cause, 22 A.L.R. 4th 917 (1983).

6 See, e.g. Annotation, Disciplinary Action Against Judge for Engaging Ex Parte Communication with Attorney, Party, or Witness, 82 A.L.R. 4th 567 (1990).

7 Angus G. Goetz, Jr. and Marcia L. Proctor, Anatomy of an Ethics Opinion, 70 Michigan Bar Journal 184, 186 (1991).

8 Grievance Administrator v. Miller, ADB Op. 90-134-GA (October 18, 1991)("No lawyer should operate under the mistaken assumption that an ex parte communication in violation of MRPC 3.5(b) is a trivial violation of the rules...")

9 United States v. Martinez, 667 F. 2d 886 (10th Cir. 1981)(mistrial); State v. Leslie, 666 P.2d 1072 (Ariz. 1983)(disqualification).