July 19, 1989
Ex parte communication between a judge and the Regulation Counsel for the Committee on Professional and Judicial Ethics concerning contemplated conduct of the inquiring judge is appropriate even though the inquiry involves a matter currently pending before that judge.
If the subject of an ethics inquiry relates to a pending matter which the judge must decide, the judge should notify the parties in the pending matter that the judge is seeking assistance and provide the parties an opportunity to review the question submitted.
References: MCJC 3A(4); MRPC 3.5(b); Article VI, Section 1, Bylaws of State Bar of Michigan.
By administrative order the Supreme Court has authorized this Committee to render written opinions interpreting the Michigan Code of Judicial Conduct. Through its jurisdictional statement, the Committee has applied the same procedures to requests for judicial ethics opinion as it does to requests for lawyer ethics opinions, to whit:
"It is the function of the State Bar of Michigan's Committee on Professional and Judicial Ethics to respond with an informal opinion to an inquiry from a Michigan judge or attorney concerning his/her own proposed conduct. The Committee is not authorized to render an opinion regarding past conduct or the conduct of someone other than the inquirer. The Committee's opinion will be limited to interpretation of the Rules of Professional Conduct or the Michigan Code of Judicial Conduct. It is not within the Committee's province to research appellate decision, statutory law or court rules or to express an opinion as to any provision of law applicable to the contemplated conduct which is the subject of an inquiry."
Although the majority of inquiries from judges pertain to the judges' own conduct in personal matters, there are a number of instance where judges have sought guidance with regard to proceedings before them. These inquiries fall into two categories: (1) a judge seeking guidance for the judge's own contemplated action, in light of events which have already transpired in the proceeding before the judge, e.g., whether the judge must report misconduct of an advocate in the proceeding, whether the judge must be disqualified, etc., and (2) a judge seeking assistance in deciding an ethics issue raised in the pending matter, e.g., motions for withdrawal, determination of attorney fees, motions for disqualification of counsel, etc.
With regard to the first category, an inquiry about how the inquirer should respond to conduct of someone else is not directly an inquiry about the propriety of that other person's conduct, but rather about the inquirer's future conduct. Focused in that way, there is nothing inappropriate in the Committee's response to such requests for guidance.
With regard to the second category, if the subject of the inquiry pertains to a pending matter which the judge must decide, should the judge refrain from any ex parte communications to a third person who is not a litigant or attorney for a litigant? MCJC 3A(4) and MRPC 3.5(b) both bar ex parte communication between a judge and a litigant or a judge and a lawyer for a litigant concerning a pending matter. Thus, nothing in the Rules or the Code seems to prohibit an ex parte communication between the judge and a committee member or committee staff member even though it concerns a matter currently pending before that judge.
The ABA Model Code of Judicial Conduct contains a clause omitted from the Michigan Code:
". . . A judge, however, may obtain the advice of a disinterested expert on the law applicable to a proceeding before him if he gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond." ABA Model Code of Judicial Conduct 3A(4).
The Committee believes as a matter of practice, that in such cases the judge should notify the parties that the judge is seeking assistance and provide the parties an opportunity to review the question submitted to the Committee, in order to obtain their suggestions for modification and agreement that it is accurate.
The most desireable approach to this problem is for inquirers to submit their ethics opinion requests in writing using the form supplied by the committee. If a written inquiry is not possible, a telephonic inquiry, where a record is made of the question and the inquirer's acknowledgement of the Committee's jurisdiction, is permissible.