87-17: Communication

7/1987

Attorney may not have ex parte communications with a hearing officer or administrative law judge for purposes of resolving procedural matters unless expressly permitted by law.

FACTS

The inquiring attorney serves as an administrative law judge. He does not have a secretary. As a consequence, he must do all his own scheduling of appointments, issuing subpoenas, setting deadlines for filings, and accepting such filings. He is concerned because our Opinion No. 87-2 prohibits all ex parte contact between lawyers participating in a case and judges therein, including administrative law judges. He would like to be able to contact lawyers directly for the limited purpose of scheduling hearings or performing other ministerial or clerical tasks.

QUESTION

May an attorney have ex parte communications with a hearing officer or administrative law judge, whether such contact is initiated by the attorney or the administrative law judge, for purposes of resolving procedural matters, so long as the merits of any case are not discussed?

ETHICAL RULE INVOLVED

ER 3.5(b). Impartiality and Decorum of the Tribunal

OPINION

ER 3.5(b) of the Rules of Professional Conduct prohibits a lawyer from communicating ex parte with a judge except as permitted by law. This rule is identical to ABA Model Rule 3.5(b). A review of Arizona cases reveals no case which expressly permits ex parte communication for ministeral or clerical purposes. In McElhanon v. Heng, 151 Ariz. 403, 728 P.2d 273 (1986), certain examples of ex parte communications which were permitted by law were listed. These exceptions include contacts authorized by A.R.S. SS 14-3301 et seq.; A.R.S. S 12-213(A); Rule 65(d), Rules of Civil Procedure (16 A.R.S.); and the federal bankruptcy act, 11 USCA SS 101 et seq.

Cases in other jurisdictions have dealt primarily with DR 7-110 of the Code of Professional Responsibility, the predecessor to current ER 3.5(b). Most of these cases are concerned with the appearance of impropriety which, while perhaps understood, is no longer a specific consideration. These cases include People v. Conte, 304 N.W.2d 485 (Mich. App. 1981); In Re Johnathan S., 88 Cal. App. 3d 468, 151 Cal. Rptr. 810 (1979); People v. District Court, 560 P.2d 828 (Colo. 1977), Chicago, M., St. P. & Pac. R. v. Washington State Commission, 67 Wash. 2d 802, 557 P. 2d 307 (1976);Williams v.Farmers Insurance Group, 720 P.2d 598 (Colo. App., 1985).

The reasons for the prohibition against ex parte communications are clear. Without such a prohibition the communicant might gain an unfair advantage in litigation by influencing the judge, however innocently, while the other party is unable to rebut. Many of the cases which discuss the issue turn on whether the ex parte communication tainted the proceedings in such a manner as to require reversal of a lower court's decision. State v. Perkins, 141 Ariz. 278, 686 P.28 1248 (1984); State v. Mincey, f41 Ariz. 425, 687 P.26 1180 (1984); Western Gillette Inc. v. Arizona Corporation Commission, 121 Ariz. 541, 592 P.2d 375 (App. 1979). Other cases, involving disciplinary proceedings, or reversal of a lower court's decision, stressed the appearance of impropriety. People v. District Court, 560 P.2d 828 (Colo. 1977); Chicago, M., St. P. & Pac R. v. Washington State Commission, supra; Heavey v. State Bar, 131 Cal. Reptr. 406, 551 P.2d 1238 (1976). In People v. Conte, 104 Mich. App. 73, 304 N.W. 2d 485 (1981), an ex parte telephone communication occurred between the prosecutor and a Court of Appeals judge. It was not disputed that the communication did not involve the merits of the case. Nevertheless, the court held that the communication violated the spirit of DR 7-110(B).

There are two predominant themes throughout the cases. The prohibition against ex parte communications is designed to (1) insure the fairness of judicial proceedings, and (2) guard against the appearance of any impropriety to the end that the integrity of the judicial system may be preserved.

Given the wording of ER 3.5(b), which prohibits ex parte communication between lawyer and judge except as permitted by law, there seems little room to compromise. Nevertheless, there appear to be alternatives. Conference calls can be arranged. Communications could be in writing, addressed to all parties. The judge may establish a routine status conference with all parties present to settle administrative matters. As a final alternative, the administrative law judge may apprise the other party of any ex parte communication, allowing the other party time to be heard, and thus lifting the communication out of the realm of ex parte communications. The later alternative clearly should be used only for procedural matters.

Ex parte communication of any kind between a lawyer and a judge is prohibited by ER 3.5(b) unless permitted by law. The instant case is not one in which ex parte communication is specifically permitted by law. Nevertheless, the administrative law judge may, by contacting the non-communicating party and allowing her or him to be heard on a procedural matter, lift the communication out of the ex parte realm. Such communications must be limited to purely procedural matters.

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.