90-20: Impartiality and Decorum of the Tribunal

12/1990

Ethically proper for attorney working with Arizona Center for Law-Related Education to communicate with judicial officer on matters wholly unrelated to litigation matters before the court. Such communications are not ex parte contacts.

FACTS

The inquiring lawyer has been working with the Arizona Bar Foundation's Arizona Center for Law-Related Education regarding development and expansion of law-related education in the state. Law-related education programs often team judges and lawyers together in programs.

Cases from the inquiring lawyer's law firm are assigned to judges with whom the inquiring lawyer would like to work on law-related education programs. The situation may also arise where one of the inquiring attorney's cases is assigned to a judge with whom the attorney is working on a project.

QUESTION

May an attorney, with ethical propriety, communicate with a judge regarding law-related education programs at a time when the attorney (or a member of the attorney's law firm) has cases pending before the judge?

ETHICAL RULES INVOLVED

ER 3.5. Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or an official of a tribunal by means prohibited by law;

(b) communicate ex parte with such a person except as permitted by law; or

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CODE OF JUDICIAL CONDUCT PROVISIONS INVOLVED

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

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B. A judge should not allow his….social, or other relationships to influence his judicial conduct or judgment…..nor should he convey or permit others to convey the impression that they are in a special position to influence him….

Canon 3. A Judge Should Perform the Duties of His Office Impartially and Diligently

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A. Adjudicative Responsibilities.

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(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer; full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte applications concerning a pending or impending proceeding....

(See 17A A.R.S. Rules of the Supreme Court, Rule 81, Code of Judicial Conduct, at pp. 508-510.)

RELEVANT PRIOR ARIZONA OPINIONS

Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987).

OPINION

The inquiring attorney's basic concern is that communication with a judicial officer about a law-related education program may be perceived as an ex parte communication under ER 3.5 This committee, however, believes it is clear that the only ex parte communications forbidden by ER 3.5 are those concerning the pending or impending proceedings before the court. Communications with a judicial officer on matters wholly unrelated to litigation matters before the court are not ex parte communications. If they were, judges would, as a practical matter, be precluded from conversing with any lawyers, either socially or through professional associations or bar committees.

This view is consistent with our prior opinions, wherein we have determined that ER 3.5(b ) prohibits an attorney from communicating ex parte with a judge concerning a case pending before the judge, whether the subject of the communication concerns the merits of the case or merely a procedural or ministerial matter. See our Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987). This committee is unwilling to extend the reasoning of those opinions to communications unrelated to any pending or impending matter before the judge.

The working relationship that may develop between a judge and an attorney through work on law-related education or, for that matter, on bar committees, raises issues which are more akin to those in the area of judicial ethics regarding the appearance of fairness and the need for disqualification, rather than ex parte communication. For example, a judge and an attorney may develop a close friendship through working together on law-related education programs. The judge may have to consider disclosing this relationship to opposing counsel in litigation if the judge thought that, because of such a relationship, his or her impartiality might reasonably be questioned under Judicial Canon 3. Moreover, under certain circumstances, a judge may have to consider disclosing contacts with opposing counsel on unrelated matters, such as law-related education programs or bar committee work, simply to avoid the appearance of impropriety as required by Judicial Canon 2.

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 proceedings.