87-02: Ex Parte Communication; Misconduct

1/1987

Except in certain situations, it is not ethical to have ex parte communication with administrative law judge concerning a Case pending before that judge.

FACTS

The inquiring attorney desires to know the ethical propriety of ex parte communications with an administrative law judge in a worker 's compensation case, whether that communication is initiated by the lawyer or by the administrative law judge.

QUESTIONS

May an attorney ethically initiate telephone communication on an ex parte basis with an administrative law judge concerning a patficular case which is pending before that judge?
May an attorney ethically communicate on an ex parte basis with an administrative law judge regarding a particular case which is pending before that judge if the judge initiates the communication?

ETHICAL RULES INVOLVED

ER 3.5. Impartiality and Decorum of the Tribunal.

ER 8.4. Misconduct.

OPINION

Under the provisions of ER 3.5(b), a lawyer way not communicate ex parte with a judge or an official of a tribunal except as permitted by law. In addition, the provisions of ER 8.4(d) define professional misconduct to include conduct that is prejudicial to the administration of justice. Finally, ER 8.4(f) states that it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct ...." While it is not within the scope of this opinion to comment on judicial ethics, it is noted that the provisions of Rule 81, Canon 3(A)(4) of the Code of Judicial Conduct, 17A A.R.S., prohibits a judge from initiating or considering ex parte, applications concerning a pending or impending proceeding. A lawyer who assists a judge in initiating or engaging in ex parte communications would thus be in violation of ER 8.4.

The recent case of McElhanon v. Hing, ____Ariz. ____ , 728 P.2d 273 (1986), is of particular interest in this situation. In McElhanon, the Arizona Supreme Court specifically disapproved of ex parte communications between a judge and a lawyer during a trial when such communications were initiated by the judge. The Court noted that the lawyer in that case, while perhaps reluctant to refuse to communicate with the judge on an ex parte basis when requested to do so by the judge, nevertheless was ethically bound to so refuse. (72B P.2d at 279-280)

There is a significant difference between the provisions of ER 3.5 and the provisions of former DR 7-110(B) which also addressed the issue of ex parte communications. In the former rule, a lawyer was admonished concerning ex parte communications with a judge or an official before whom a proceeding was pending as to the merits of the cause (emphasis supplied). ER 3.5 prohibits ex parte communications (except as permitted by law) without any distinctions between procedural communications and communications on the merits of a case.

There are certain situations in which ex parte communications are permitted by law. Except as provided for in such situations, it would be unethical for an attorney to have ex parte communications with an administrative law judge concerning a case which is pending before that administrative law judge. An attorney may not initiate any such communications and ethically should refuse to participate in any such communications initiated by the administrative law judge.

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.