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Ethics Opinion

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JI-84

March 7, 1994

SYLLABUS

    A judge who attends a program or seminar at which the faculty argues issues which are nearly identical to those in a case pending before the judge is not required to advise the parties and their counsel in the pending case that the judge attended the seminar.

    References: MCJC 3A(4); MRPC 3.5; RI-166; In re Jenkins, 437 Mich 15 (1991).

TEXT

A judge has attended an educational seminar out-of-state during which a moot court hypothetical was presented. The seminar faculty argues issues which are nearly identical to those in a case pending on the judge's trial calendar. The judge has made notes about the theories and arguments presented. None of the lawyers making the presentation are involved in the case pending before the judge and none of the lawyers regularly appear in the judge's court.

The judge asks whether ethics rules require any notice to be given to the counsel in the pending case regarding the judge's attendance at the program.

RI-166 discusses a lawyer's duty to disclose to appropriate authorities and all interested parties additional material added to a case file after the close of proofs. Failure to do so constitutes conduct prejudicial to the administration of justice -- note that this situation relates to the lawyer having to draft an opinion on the file which includes materials the lawyer has seen and other board members have not.

MCJC 3A(4) states:

    "A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate, consider, nor permit ex parte or other communications with a litigant or attorney concerning a pending or impending proceeding."

MRPC 3.5 states:

    A lawyer shall not:

      "(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

      "(b) communicate ex parte with such a person concerning a pending matter, except as permitted by law; or

      "(c) engage in undignified or discourteous conduct toward the tribunal."

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. See also, In re Jenkins, 437 Mich 15 (1991), a judge of a district court was removed from office after being found to have engaged in, among other things, routine improper ex parte communications.

A judge is obliged to rule on issues presented only on the evidence presented by the advocates. A judge is permitted, however, to research legal issues and to consult with judicial colleagues and law clerks before rendering decisions. The judge's participation in the seminar does not reflect adversely on the judge's ability to render a decision based upon the record. Therefore a judge would not be required to give notice about the prior program or seminar. However, if the judge considers evidence not presented by counsel, then the judge should reveal the consideration of such to the parties involved.

 
     

 

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