EX PARTE CAFE’ – Do you have one in your county? Let us know.

By Senior Editor Stan Billingsley                                                         March 8, 2011

     Our definition of the term Ex Parte Cafe’:  A practice where a judicial officer improperly discusses the merits of a pending case with one of the attorneys or parties out of the presence of the opposing attorney or party.

     Maybe it’s just chance, but we have heard a lot of rumors about Ex Parte meetings from lawyers in the last month or so.  We have no documentation of these claims and we admit that our reports are nothing but hearsay.

    One report expressed concern when a Federal Judge was seen meeting with a prosecutor during a recent trial.  When asked about it, he bragged he would never talk about it.  

    In one central Kentucky county a Circuit Judge granted a Writ of Prohibition against the District Judge who ruled against the County Attorney.  The County Attorney is the Circuit Judges former assistant.  The unusual court order directed the District Judge  to not hold a pretrial hearing in which the District Judge ordered the arresting police officer to be present.  This does not on its face involve a claim of Ex Parte communications, but is felt by some to hint at a special relationship between a judge and a prosecutor.  We do not allege any impropriety, but we note that someone felt it was enough of a problem to start a rumor about it on Res Ipsa reasoning. 

    Some claims have involved the close relationship of KBA Trial Commissioners with ethics prosecutors representing the KBA.  No proof here, just speculation on the street.  This concern by lawyers appearing before the KBA is heightened by the cloak of secrecy imposed on ethics hearings.  KBA Trial Commissioners who frequently have little or no judicial experience, should be cautious of being seen meeting privately with ethics prosecutors.  Fortunately, we have seen at least two recent cases in which the KBA Trial Commissioner was a retired Judge.  This trend to appoint people with real judicial experience is refreshing.  We hope that trend continues.

    Over the years it has been my experience that most judges are very good about avoiding ex parte communications. I don’t recall one instance of an attorney or  prosecutor attempting to discuss the “merits of the cause” improperly. Nevertheless, it is difficult for a judge not to be socially close to prosecutors and attorneys.  These social relationships are going to happen, but we all should be careful, particularly during a trial or hearing, to avoid social meetings in private with either parties attorney.

    An attorney in Louisville explained, “It makes you kind of sick in the stomach when you see the prosecutor and the judge having lunch together during a trial.”

    I remember one incident when I was a special judge in an Eastern Kentucky county.  At lunch I went to one of the few local restaurants.  The room was packed and only one seat at one table was vacant.  I asked the two gentlemen sitting at the table if I could join them.  I had no idea who they were.   I noticed a stiffness in their demeanor.  They hardly spoke to me at all.  Later I learned that they were representatives of an insurance company who insured the defendant in the case I had just started.  We certainly didn’t discuss the case, but I acknowledge that this might have given the impression of impropriety to others. I decided to bring my lunch and eat in chambers after that incident. Fortunately the case was settled before court resumed.  Only after the settlement did I learn who the men were. 

    The Supreme Court Rule regarding Ex Parte communications states:

SCR 3.130(3.5) Impartiality and decorum of the tribunal

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 as to the merits of the cause except as permitted by law or court order;

           A judge can avoid these rumors by restricting any private meetings with an attorney or party.  Always try to be in the presence of third parties who can serve as witnesses of what was discussed.  You can discuss basketball or NASCAR, but you can’t discuss a pending case.

      Everyone should be aware that any meeting during a trial in which all parties are not present will give rise to suspicion that something improper is being discussed.   If such a meeting occurs the judicial officer should inform the other party who was not present, and confirm to them that the case was not discussed.   If the judge is proactive he may avoid suspicion of his conduct.

   Many years ago when I was a private attorney, I recall that when court was in session that opposing attorneys and judges, who might be best friends, would not meet socially until the trial was over.  That seemed to be a good practice.

    We emphasize that under the newly broadened squeal rule, if a Judge violates SCR 3.130(3.5) the matter should be reported to the Judicial Conduct Commission.  The attorney should be reported to the KBA.

    If you have witnessed an example of a Ex Parte Cafe’ meeting, please let us know.  E-mail: Firstjudge@aol.com.   We caution that if any facts are given identifying any party that we are under the same obligation as other attorneys in reporting any violations of SCR 3.130(3.5).

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