EX PARTE COMMUNICATIONS STRONGLY BANNED BY SCR 4.300

Commonwealth v. Wilson, 384 S.W.3d 113 (Ky., 2012) December 20, 2012
We need to go no further to deplore this practice than Supreme Court Rule 4.300, Canon 3B(7), which prohibits ex parte contacts in these circumstances. That rule states that “with regard to a pending or impending proceeding, 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….” There are exceptions in this rule when dealing with certain matters that do not deal with “substantive matters.” SCR 3.130–3.5 also prohibits a lawyer from engaging in an ex parte contact with a judge “as to the merits of the cause except as permitted by law or court order.” A lawyer who seeks to have a summons substituted for an arrest warrant on the grounds that the prosecuting witness has recanted her statement to authorities is undoubtedly addressing a “substantive” matter and “merits of the cause.” There is other authority deeming ex parte contact between the trial judge and a defense attorney impermissible. Application of Storer Communications, Inc., 828 F.2d 330, 335 (6th Cir.1987) (“The public has a legitimate interest in criminal proceedings, and this interest is thwarted by ex parte proceedings…. Ex parte proceedings, particularly in criminal cases, are contrary to the most basic concepts of American justice and should not be permitted except possibly in most extraordinary cases involving national security.”); American Bar Association, Standards for Criminal Justice, 6–2.1 (2nd ed.1986) (“The trial judge should insist that neither the prosecutor nor the defense counsel nor any other person discuss a pending case with the judge ex parte, except after adequate notice to all other parties or when authorized by law or in accordance with approved practice. The judge should ensure that all such ex parte communications are subsequently noted on the record.”).
Wilson seems to justify this practice along a quid pro quo argument. Since the Commonwealth obtains an arrest warrant through ex parte communications with an issuing magistrate, the defense is justified in engaging in such one-sided communications with the court. This is both a fallacious and potentially disruptive interpretation of our criminal procedure as set down by statute and rule.
We forbid it.
One-sided contacts between judges and lawyers or parties regarding pending and impending cases are prohibited, even in matters where the legal stakes are lower than those at issue in this case. …… But Kentucky’s Judicial Canons forbid one-sided contacts relating to all judicial proceedings, except in regards to scheduling, initial fixing of bail, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits. SCR 4.300, Canon 3(B)(7)(a). …. It is the judge’s ethical responsibility to maintain the high standard for local practice, prohibiting improper ex parte contacts by lawyers and non-lawyers alike. It is the lawyer’s correlative ethical duty under SCR 1.130–3.5 to avoid engaging in one-sided practice.
We also acknowledge that most Kentucky prosecutors and defense lawyers—hopefully all—operate under a revered honor code. Under this procedure, the defense lawyer confers with the prosecutor first, who may very well allow the trusted adversary to convey his or her position to the court without the prosecutor appearing. This is particularly true when the prosecutor has no objection to the request of the defendant’s counsel. Rocky is the road of the lawyer who breaches that trust. Mutual respect is mandatory, not only for opposing counsel, but the interest they represent.
The law is so certified.

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