KBA Ethics Opinion Prohibits Ex Parte Communication Between Judge and Prosecutor

KENTUCKY BAR ASSOCIATION  Ethics Opinion KBA E-419

Issued: May 2002

 Subject: Ex Parte Communication Issues in Meetings between Prosecutors and Judges

 

Question: May prosecutors (Commonwealth’s attorneys or county attorneys) arrange and conduct meetings with judges for the purpose of establishing informal

policies or shared understandings on issues likely to influence outcomes in

pending or future criminal cases?

Answer: No.

Principal References: Rules 3.5 and 8.3(e), Kentucky Rules of Professional

Conduct (S.C.R. 3.130); Canon 3(B)(7), Kentucky Code of

Judicial Conduct (S.C.R. 4.300); American Bar

Association, Center for Professional Responsibility,

Annotated Model Rules of Professional Responsibility (4th

ed. 1999); American Law Institute, Restatement (Third) of

the Law Governing Lawyers § 113 (2000)

 

OPINION

 

This inquiry calls upon us to examine ex parte aspects of meetings held by

prosecutors with judges of a judicial district or circuit, for the purpose of establishing

informal policies or shared understandings on issues of criminal justice and court

administration. Our opinion is narrow in scope. It is not directed toward regular or

recurrent training institutes or continuing professional education programs, where

lawyers and judges necessarily and appropriately interact. Nor is it directed toward

conferences, training institutes, or meetings on matters of case management, scheduling,

and other topics relating generally to the efficient administration of justice. Rather, this

opinion is directed toward meetings focusing on issues likely to influence outcomes in

pending or future criminal cases. Furthermore, this opinion addresses only the

professional responsibilities of lawyers; it does not purport to determine the

responsibilities of judges or court staff.

The inquiry was prompted by a meeting in which the agenda, prepared by the

county attorney, apparently included not only administrative issues regarding the

scheduling of hearings and trials, but also such matters as the following: admissibility of

evidence (e.g., scientific tests of intoxication); proper time at trial to introduce

defendants’ prior criminal records; [dis]allowance of pleas to lesser offenses (e.g., driving

under the influence with lower blood-alcohol content); circumstances in which the court

should consider employing diversion programs, home incarceration, and other alternative

dispositions; possible monetary sanctions against defense counsel who make last-minute

requests for trial continuances or jury trials; and other, unstated concerns over the

conduct of certain defense attorneys. No specific pending or impending cases were

discussed at the meeting. Members of the defense bar evidently received copies of the

agenda, and they were free to attend the meeting or to communicate their views, either to

the county attorney or to the district judges.

The Committee recognizes that recurring issues in criminal justice and court

administration inevitably will generate casual conversation among individual judges,

court staff, prosecutors, and defense counsel. The Committee also acknowledges that

professional education, training, and open communication are essential to developing

case management systems and practices that promote efficiency while enabling the

judiciary, the executive branch, and the bar to perform their distinctive responsibilities

effectively. Thus, if a court engages in administrative rule-making, it may enlist the

expertise of a bench-bar committee, and may provide opportunities for comment by the

bar and the public, in order to understand the perspectives and needs of all constituencies

and key role-players in the administration of justice. But if lawyers and judges meet

outside the framework such professional education, training, or rule-making processes,

for the purpose of exploring informal policies or shared understandings on the way

certain issues will be handled – and if those issues are not limited to case management,

but reach instead to substantive or procedural matters likely to influence the outcomes of

pending or future cases – then such meetings have potential implications for lawyers

under the Rules of Professional Conduct.

Our analysis begins with Rule 3.5 (S.C.R. 3.130 [3.5] ) of the Kentucky Rules of

Professional Conduct, which protects the “impartiality and decorum of the tribunal.”

The rule provides that a lawyer shall not “seek to influence a judge … by means

prohibited by law,” nor shall a lawyer “[c]ommunicate ex parte … as to the merits of the

cause except as permitted by law ….” In general, the rule prohibits a lawyer from

communicating with a judge outside the presence of opposing parties in litigation (or

their counsel), without their knowledge or consent. See generally, American Bar

Association, Center for Professional Responsibility, Annotated Model Rules of

Professional Responsibility (4th ed. 1999), at pp. 343-45 (hereinafter cited as Annotated

Model Rules). The interrelated purposes of the rule are to safeguard the integrity of the

judicial system and to assure that each litigant receives a fair, unbiased hearing. Id. See

also, American Law Institute, Restatement (Third) of the Law Governing Lawyers § 113,

comment b.

 

Rule 3.5 imposes a constraint upon lawyers that appears to be parallel to the

constraint imposed upon judges by Canon 3(B)(7) of the Kentucky Rules of Judicial

Conduct (S.C.R. 4.300). The canon provides, in pertinent part, as follows:

[A] judge shall not initiate, permit, or consider ex parte communications

with attorneys and shall not initiate, encourage or consider ex parte

communications with parties, except that:

(a) Where circumstances require, ex parte communications for

scheduling, initial fixing of bail, administrative purposes or emergencies

that do not deal with substantive matters or issues on the merits are

authorized; provided

(i) the judge reasonably believes that no 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 of the

substance of the ex parte communication and allows an opportunity to

respond.

Canon 3(B)(7) is, of course, subject to interpretation by the Judicial Ethics

Committee under S.C.R. 4.310, and nothing in our opinion is binding upon that body or

upon Kentucky’s judges. The canon is noted here, however, because it helps explain the

importance and function of Rule 3.5. By preventing lawyers from exposing judges to

improper ex parte communications, Rule 3.5 gives prophylactic support to the canon.

The relationship between the rule and the canon is further strengthened by Rule 8.3(e),

which makes it unprofessional misconduct for a lawyer to “[k]nowingly assist a judge or

judicial officer in conduct that is a violation of the applicable Rules [sic] of Judicial

Conduct or other law.”

Of course, not all ex parte communications offend Rule 3.5. There are two

exceptions. First, as both the rule and the canon recognize, a communication is not

prohibited if it is specifically permitted by law. Second, if the subject matter of a

communication is unrelated to, and remote from, any matter pending or impending before

a judge, it is deemed to fall outside Rule 3.5. Annotated Model Rules at 349. This

second exception turns on “whether a communication has the possibility or appearance of

influencing the outcome of a case.” Id. The test is an objective one; the rule applies

regardless of whether a lawyer intends to influence an outcome. The rule also applies (a)

regardless of whether the lawyer subjectively believes the communication would not put

any litigant at a disadvantage, see, e.g., In re Bemis, 938 P.2d 1120 (Ariz. 1997); (b)

regardless of whether the subject matter of the potentially outcome-influencing

communication is substantive or procedural, see Philadelphia Bar Association

Professional Guidance Committee, Opinion No. 98-14 (1999); (c) regardless of whether

the lawyer represents a party in the potentially affected case, see, e.g., Florida Bar v.

Saphirstein, 376 So.2d 7 (1979) (decided under prior Code of Professional

Responsibility); and (d) regardless whether the communication is initiated by the lawyer

or a judge. See, Annotated Model Rules at 343-44, and Michigan Standing Committee on

Professional and Judicial Ethics, Opinion No. RI-243 (1995) (observing that lawyer and

judge have “reciprocal” duties to refrain from improper ex parte communications).

Similarly, Canon 3(B)(7) imposes a broad prohibition against ex parte communications,

allowing exceptions only if the judge “reasonably” believes that “no party will gain a

procedural or tactical advantage.”

Interpreted consistently with Canon 3(B)(7), Rule 3.5 allows an ex parte

communication if it merely concerns the scheduling of a hearing or trial, or relates to

some other administrative matter unlikely to influence the outcome of a particular case –

although, even in such a case, the lawyer should make reasonable efforts to notify other

counsel. See North Carolina State Bar Ethics Opinion No. 3 [1993].) Conversely,

however, if a communication deals with an issue likely to influence the outcome of a

case, the communication is prohibited if undertaken ex parte. This fundamental principle

ordinarily is applied to communications between a lawyer and a single judge in a pending

case; but the principle logically applies as well to communications by a lawyer or group

of lawyers with several judges concerning issues likely to influence outcomes in cases

pending or impending before them.

This principle is not avoided by simply labeling such communications as

“meetings” or other gatherings. Although a lawyer’s presentation during a continuing

legal education seminar is generally not considered to be outcome-influencing, even if

judges are in attendance, see, e.g., Michigan Standing Committee on Professional and

Judicial Ethics, Opinion No. JI-84 (1994), a “training seminar” on DUI cases, prepared

and presented by a county attorney specifically for the judges of that county, has been

found to constitute an improper ex parte communication. See New York Advisory

Committee on Judicial Ethics, Opinion No. 87-28 (1988) (expressing “apprehensions”

that the prosecutor’s “educational” presentations on scientific evidence and sentencing

recommendations could produce a “partisan conditioning” of the judges – including, but

not limited to, part-time lay judges — in future cases). Such an in-house “seminar,”

transparently designed to influence outcomes of certain kinds of cases in the jurisdiction,

is easily distinguished from regular or recurrent training and professional education

programs that are not directed toward outcomes in pending or impending cases.

Accordingly, the Committee concludes that a meeting of the kind described at the

outset of this opinion – where prosecutors seek to develop informal polices or shared

understandings with judges of their jurisdiction regarding the admissibility of certain

types of evidence, the timing for introduction of certain evidence, the disallowance of

certain pleas, the selection of sentencing or other dispository alternatives, and the

consideration of methods for dealing with certain conduct of defense counsel — constitute

ex parte communications under Rule 3.5. The issues are likely to influence outcomes in

pending and future cases in the jurisdiction. The fact that defense counsel may be invited

to such a meeting does not, in our view, alter the ex parte character of the

communications during the meeting. Not all of a county’s defense bar is likely to attend

such a meeting. Moreover, defense counsel in impending cases might come from any

county or any state, and it could hardly be argued that they had a voice in — or that they

should be charged with knowledge of — any informal policies or shared understandings

generated in their absence.

__________

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the

Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530

(or its predecessor rule). Note that the Rule provides: “Both informal and formal

opinions shall be advisory only; however, no attorney shall be disciplined for any

professional act on his part performed in compliance with an opinion furnished to him on

his petition, provided his petition clearly, fairly, accurately and completely states his

contemplated professional act.”

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