Volume 20, Number 6
September 2003


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TRIAL PRACTICE

IT DEPENDS ON THE MEANING OF "EX PARTE"

By Jack M. Weiss

Jack M. Weiss is a partner with Gibson, Dunn and Crutcher, LLP, in New York.


The prohibitions on ex parte communications apply both to judges and lawyers alike. From the perspective of judges, Rule 3B(7) of the ABA Model Code of Judicial Conduct (MCJC) provides generally that, except as authorized by law, judges may "neither initiate nor consider ex parte or other communications . . . concerning a pending or impending proceeding." The MCJC, however, provides for certain exceptions. Judges are permitted to engage in ex parte communications for scheduling, administrative purposes, or emergencies, but only if they do not deal with substantive matters, do not confer "a substantive or tactical" advantage on any party, and are promptly communicated to absent parties, who are to be afforded an opportunity to respond. A judge may also confer ex parte in order to settle or mediate a case-but only with the consent of the parties.

Parallel rules of professional conduct likewise long have forbidden lawyers to engage in ex parte communications. Rule 3.5(b) of the ABA Model Rules of Professional Conduct states that "[a] lawyer shall not . . . communicate ex parte with [a judge] except as permitted by law." The comment to Rule 3.5 makes clear that the rule broadly incorporates by reference the proscriptions of the MCJC. The prohibition applies to clients or other intermediaries acting at the suggestion or direction of a lawyer, and to ex parte contacts not only with judges but also with "hearing officers, court clerks exercising important discretionary functions, and similar officers." As with the MCJC, the Model Rules permit lawyers to engage in ex parte communications "authorized by law."

Scheduling questions. The model rules for both judges and lawyers reflect that many conversations about scheduling uncertainties do not warrant the formality that attends substantive contacts. For example, asking a judge's law clerk when the judge might be available for trial or a hearing if the current date were upset or, generally, inquiring about the kind of showing the judge typically requires to grant a first continuance often are truly benign. On the other hand, some scheduling questions are matters of great consequence or matters that a reasonable lawyer would consider important for tactical or strategic reasons. These questions should be presented to the court or its staff only with the necessary formality. A request to continue a trial or hearing that is all but certain to be hotly contested or that will have an evident impact on preparation time, availability of witnesses, or further discovery, for example, is a plainly substantive matter.

Administrative matters. Who among us has not been at a loss to interpret an individual judge's pretrial requirements or has needed to know about a particular judge's facilities for demonstrative exhibits, computer-generated visual aids, and the like? Experienced lawyers routinely speak to chambers to get this kind of housekeeping straight, especially with courts that have some tradition of easy communications with the bar. Generally, these matters fit comfortably within the exception for "administrative matters."

Advising of forthcoming papers. It is not uncommon to take steps to inform a trial judge, or even an appellate court, that may be poised to rule on an application filed by an opponent (say, for a continuance or emergency relief) that your side wishes an opportunity to be heard before the court rules. In those circumstances, lawyers often contact chambers to advise that they wish to file papers and to try to determine how long they have to file before the court acts on the pending matter. In truth, these communications might well be construed as a request that the court not act until the contacting party gets its last say. And, in some cases, these calls do elicit some vague assurance from chambers or the clerk's office that, if you move quickly, the court will not act until it hears from you. Generally, if the request is designed to inform the court of your intention to file and thus prevent some misunderstanding to the contrary, and contemplates only a brief hiatus to allow you to make an anticipated filing, more often than not it may be accomplished informally. More substantive communications of this nature, however-for example, discussing with chambers the merits of an anticipated filing-are a different matter and should be avoided unless opposing counsel is included.

Submission of orders and other judicial determinations. The extent to which trial judges rely on a party to draft orders, findings of fact, conclusions of law, and even opinions varies widely. When lawyers make these submissions without providing other parties notice and an opportunity to be heard, the submission may constitute a form of improper ex parte communication. Except for the most routine of submissions, such as a boilerplate judgment of dismissal, careful lawyers should share their proposed orders with opposing counsel and should not submit orders to the court or otherwise seek court action on such orders until the other party consents or has an opportunity to respond.

Judge-initiated ex parte communications. Awkward as they are, these contacts are almost always well intended and typically designed to elicit some candid information that the judge views as helpful to the decisional or settlement processes. What if the judge in a case you are trying phones you ex parte, expressing skepticism about your case and urging you to settle? Such contacts pose a serious dilemma for lawyers who try to play by the rules. The Restatement of the Law Governing Lawyers §113, cmt. b (ALI 2000) states quite explicitly, "if a judicial officer initiates an impermissible ex parte communication with an advocate, the advocate must refuse to continue the communication."

One variation on judge-initiated communications deserves specific comment. It is certainly not unknown for judges to consult practitioners or law professors not involved in a pending case to obtain input on the proper disposition of the case. Rule 3B(7)(1) of the Model Judicial Code is quite specific in permitting judges to obtain such advice, but only if the consultation is disclosed to the litigants and they are afforded an opportunity to respond.

Final thoughts. First, lawyers and judges often misunderstand the prohibition on ex parte communications, particularly with respect to the exception for scheduling and administrative matters. Second, even the most upstanding lawyers and judges do not consistently abide by the requirement that ex parte communications about bona fide scheduling and administrative matters be communicated promptly to other parties. Third, there is room for honest misunderstanding about those matters even among careful lawyers and judges. For lawyers, then, the best rule is a simple one: If there is any doubt, there is no doubt. Take the high road and do not try to rationalize the low road.

For judges, the message is a bit different. On the one hand, do not confuse due regard for the ex parte "sin" with either inaccessibility or inflexibility. A trial judge can be available on a reasonable basis without entertaining improper solo approaches. On the other hand, be a stickler when you get a whiff of the poisonous stuff, however faint. Be sure that court staff is sensitive to the need for strict avoidance of substantive ex parte discussions and to the range of topics that such discussions may involve. Come down hard when you are convinced that a lawyer has tried to gain an unfair advantage.


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