Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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In the absence of adequate notice to opposing counsel, is it ethical for an attorney to communicate with a trial judge concerning the merits of a contested matter decided by the judge and then on review by a higher court?
It is not ethical for an attorney to communicate ex parte with a trial judge on the merits of a contested matter decided by the judge and on review by a higher court if the matter may come again before the same trial judge. Such a matter is "pending" before the trial judge. Attorneys engaging in such conduct violate their duty to protect the impartiality of the decision-making process and their duty of fairness owed to opposing counsel.
Rule 7-108(B) of the Rules of Professional Conduct of the State Bar of California.
The inquiry received by the Committee concerns events which occurred after a trial court's decision to revoke probation. The defendant's attorney petitioned for a writ of habeas corpus in a higher court. Prior to the hearing on the order to show cause, the prosecuting attorney discussed the factual allegations in the petition with the trial court judge. The prosecuting attorney then submitted his declaration to the higher court indicating the views held by the trial court judge. The defense attorney was not present at the discussion with the trial judge and had received no notice of it. The writ was granted and the matter came back to the trial judge.
Rule 7-108(B) of the Rules of Professional Conduct of the State Bar reads:
"A member of the State Bar shall not directly or indirectly, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer, upon the merits of a contested matter pending before such judge or judicial officer, except in open court; .... The rule shall not apply to ex parte matters."
It is the Committee's opinion that a contested matter is "pending" before a trial judge while the matter, or some aspect of it, is being reviewed by a higher court, if the matter, or aspect thereof, may again come before the same trial judge. (See Code Civ. Proc., 1049.) In Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739 [661 P.2d 1064, 190 Cal.Rptr. 910], the California Supreme Court concluded that ex parte communications by a trial judge concerning the merits of a petition for mandate to review a criminal suppression order of the judge was prejudicial to the administration of justice. The suppression order was an aspect of the criminal matter which was before the trial judge.1 Although Roberts concerned judicial ethics, rule 7-108(B) prohibits attorneys, on their part, from engaging in similar conduct.
Attorneys have a duty to protect the impartiality of the decision-making process. Improper ex parte contacts erode public confidence in the fairness of the administration of justice. This public confidence is "the very cement by which the system holds together." (In re Jonathan S. (1979) 88 Cal.App.3d 468, 471 [151 Cal.Rptr. 810, 812].) Improper ex parte contacts also violate a duty of fairness owed to opposing counsel. They prevent opposing counsel from effectively performing' his role as an attorney. (Heavey v. State Bar (1976) 17 Cal.3d 533 [551 P.2d 1238, 131 Cal.Rptr. 406].) The ex parte rule is, in essence, "a rule of fairness meant to insure that all interested sides will be heard on an issue." (Heavey, supra, at p. 559.)
Although some review proceedings may require a trial judge to be a witness during the review of a matter decided by him, a judge is never like other witnesses. His role as an impartial decision-maker demands that his future impartiality be protected. Access to him as a witness is, therefore, controlled by rule 7-108(B). In Roberts v. Commission on Judicial Performance, supra, at p. 747, the California Supreme Court went so far as to say that a judge's ex parte communications with a real party in interest were improper, even though the Judge, himself, was a party respondent to the proceeding. If it is improper for a judge to communicate ex parte with the real party in interest even though he is also a party respondent, a similar communication by an attorney is certainly improper when the judge's role is solely that of a witness. The fact that the trial judge may be a witness in a review proceeding does not justify ex parte contacts.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 In People v. Laue (1982) 130 Cal.App.3d 1055, 1061 [182 Cal.Rptr. 99], which did not involve a matter pending before a higher court, the defendant had been sentenced following a guilty plea, and the judgment was final. The defense attorney thereafter had an ex parte communication with the judge, in which the attorney asked the court to initiate re-sentencing proceedings under Penal Code section 1170. The judge, after a hearing, reduced the sentence. The court found that the communication between the defense attorney and the judge was not concerning a pending matter and therefore rule 7-108(B) had not been violated.