Standard 11 - Ex Parte Communications
by Judge Gregory K. Orme
Editors' Note: A member of the Supreme Court's Advisory Committee on Professionalism will discuss one of the new Standards of Professionalism and Civility with each issue of the Bar Journal. The opinions expressed are those of the member and not necessarily those of the Advisory Committee.
"Lawyers shall avoid impermissible ex parte communications." There's nothing novel about this idea: Don't talk to a judge (or other adjudicator) about a case unless opposing counsel is in on the conversation. The same precept holds for conversations with the judge's law clerk or other members of the judge's staff. There are a few exceptions, mostly having to do with procedural things, like scheduling, but always err on the side of avoiding one-sided conversations about cases.
If you bump into a judge at a baseball game, it's OK to talk to him about the disappointing play of the shortstop, the weather, or how much you miss the old Chicago Dog concession. If you believe he would be an asset to that bench, it's OK to encourage the judge to apply for the pending vacancy on the Court of Appeals. It's not OK to ask the judge if he has read your memo in support of a motion for summary judgment - much less if he had any questions that you might be able to answer. You must hurry back to your seat without answering if the judge up and asks you such a question on his own.
If the judge's clerk calls to see if you are available to come for a hearing a half hour early, you are free to respond. If her secretary calls to check the spelling of a witness's name, the same is true. If the clerk calls to pass along some suggestions the judge has for the findings of fact you are working on, you need to insist that opposing counsel be joined in the conversation before it proceeds. If the clerk says the judge intended the input to be for "your ears only," you need to decline the proffered help and contact Colin Winchester, executive director of the Judicial Conduct Commission.
You may call a judge's law clerk to see if the judge is planning to attend a section meeting or is available for a speaking engagement. You may not call after oral argument to explain, "just between us chickens," that opposing counsel incorrectly represented that laches had been argued below when a review of the transcript makes clear it was only waiver.
This standard does not add some new burden to the profession. Lawyers are already subject to Rule 3.5(c) of the Rules of Professional Conduct, which directs lawyers not to "communicate, or cause another to communicate, as to the merits of the cause with a judge or other official before whom a matter is pending." Judges are subject to this apparently more expansive prohibition in Canon 3(B)(7) of the Code of Judicial Conduct: "Except as authorized by law, a judge shall neither initiate nor consider, and shall discourage, ex parte or other communications concerning a pending or impending proceeding."
What, then, does Standard 11 add to a lawyer's responsibility? Actually, nothing. "[I]mpermissible ex parte communications" are precisely those proscribed by the ethical requirements just mentioned. So why the redundancy of Standard 11? Just a good reminder? Perhaps, but on that rationale there are any number of ethical precepts that might have been repeated in the Standards of Professionalism and Civility.
The fact of the matter is that the Supreme Court's Advisory Committee on Professionalism had endeavored to expand just slightly the ex parte realm to be avoided by conscientious attorneys. Its recommended Standards included this version of Standard 11: "Lawyers shall avoid impermissible ex parte communications on any substantive matter and on any matter that could reasonably be perceived as a substantive matter." In its order adopting the Standards of Professionalism and Civility recommended by the committee, the Supreme Court adopted, verbatim, the language of the other nineteen proposed standards. Only Standard 11 was modified. The text after the word "communications" was deleted, leaving Standard 11 in its present form: "Lawyers shall avoid impermissible ex parte communications."
My advice is to stay clear of anything that might be an impermissible ex parte communication. Err on the side of avoidance. Lawyers, don't spend a lot of mental energy trying to figure out if something deals with "the merits of the cause." Judges, don't spend a lot of time figuring out where to draw the line between an "impending proceeding" and a possible proceeding that is not quite that immediately imminent. The fact is, a lawyer and a judge cannot get in trouble for a one-on-one conversation they never had.