Lawyer and Judge Compared

Lawyer and Judge Compared

A lawyer and a judge who talk privately about a pending case answer to two different rules, and each rule speaks only to its own subject. Rule 3.5(b) forbids a lawyer to “communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order.”¹ Rule 2.9 of the Model Code of Judicial Conduct forbids the judge on the other end of the conversation to “initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of other parties or their lawyers, concerning a pending or impending matter.”² Earlier sections of this chapter concentrated on the lawyer’s duty. This section sets the two duties side by side, because a fact pattern about a private conversation with a judge often calls for two analyses, not one.

Each rule addresses one participant, so each participant answers for that participant’s own conduct. A lawyer therefore cannot defend a Rule 3.5(b) charge by pointing to what the judge did. A judge’s improper act, in turn, does not make a lawyer a violator unless the lawyer took part in the communication. The comparison below shows where the two rules line up and where they separate.

	Lawyer	Judge
Source	Rule 3.5(b)	Model Code Rule 2.9
Whose conduct	The lawyer’s own communication	The judge’s conduct, and the staff’s, which is treated as an extension of the judge
Conduct forbidden	Communicating ex parte during the proceeding	Initiating, permitting, or considering ex parte communications, and considering other communications made outside the presence of the other parties or their lawyers, about a pending or impending matter
Authorization	“Authorized … by law or court order”	Communications “expressly authorized by law,” plus other exceptions, some conditioned on notice

The judicial rule rests on three verbs, and each describes a different way a judge can become involved. A judge who opens the subject initiates the communication, a judge who lets it continue permits it, and a judge who weighs what arrives, invited or not, considers it.³ The lawyer’s rule has one verb, communicate, so a violation requires a lawyer who is communicating. The judicial rule requires no lawyer at all. Improper ex parte communications typically occur between the judge and attorneys, parties, witnesses, or law enforcement, so a judge can breach the rule in a conversation that no lawyer joins.⁴ Staff count as well. Because the judge’s staff is an extension of the judge, ex parte communications that would be improper for the judge are improper for the staff.⁵

Most often a single conversation breaches both rules. Improper contact between judges and lawyers occurs with some frequency, because the opportunities are plentiful and the circumstances often seem harmless.⁶ A recurring example is the judge who approaches a lawyer ex parte with instructions to draft a proposed order favorable to the lawyer’s client, for the judge to sign.⁷ The judge has initiated an ex parte communication about a pending matter.⁸ A lawyer who takes the assignment and delivers the draft without the opponent’s knowledge has communicated with the decision maker, with the opponent absent. Unless law or court order authorizes it, the lawyer has violated Rule 3.5(b), no matter who raised the subject.⁹

The lawyer can also violate the rule alone. A lawyer’s communication is complete once it is made, and the judge’s conduct is then measured separately against the judge’s own three verbs. A judge who cuts the exchange short and promptly tells the other side has neither initiated nor permitted the contact. That judge has also given the prompt notice the judicial rule makes a condition of at least one of its exceptions.¹⁰

The violation can also fall on the judge’s side alone. Because staff are an extension of the judge, a clerk’s private contact with a party about a pending case is judged as the judge’s contact would be, even when no lawyer appears anywhere in the story.¹¹

Together the two scenes and the draft-order example show three of the four possible combinations. The fourth is the case in which law authorizes the contact. The four are these:

• Both violate, as when a lawyer accepts a judge’s request to draft an order privately.
• The lawyer alone violates, as when a lawyer argues a motion in the parking lot and the judge ends the exchange.
• The judge’s side alone is at fault, as when a clerk privately gathers facts from a party.
• Neither is at fault, as when the communication is authorized by law.

Authorization must be checked separately for each person, because the two texts are worded differently. The lawyer’s rule excuses a communication “authorized … by law or court order.”¹² The judicial rule’s catchall covers communications “expressly authorized by law,” an exception that has acquired specific relevance in the problem-solving or therapeutic courts movement.¹³ At least one other judicial exception applies only when the judge does not reasonably believe the communication will advantage parties to it, and only when the excluded parties are promptly notified and offered an opportunity to respond.¹⁴ An exception that clears one person therefore does not automatically clear the other.

The last step guards against the two mistakes an exam stem invites. The first treats the judge’s fault as proof of the lawyer’s. That skips the question whether any lawyer communicated at all, and the clerk scenario shows why the question matters. The second treats the judge’s initiative as the lawyer’s excuse, which skips the point that the lawyer’s rule asks only what the lawyer did.