March 23, 1994
A judge has an affirmative duty not to permit ex parte communications. Accordingly, a judge should not permit a party or counsel to submit materials allegedly for an in camera inspection without counsel providing the opposing counsel notice and an opportunity to be heard prior to the submission.
If an ex parte submission is an isolated incident and counsel promptly responds to correct the situation as directed by the judge, the judge may conclude that "appropriate" measures have been taken and that no further reporting is required.
References: MCJC 3A(4), 3B(3); MRPC 3.5(b), 8.3.
A judge is presiding in a case in which a motion for summary judgment has been submitted by defendants. In a Brief in Opposition to the Motion for Summary Judgment, plaintiff's counsel argues that the Motion is premature because discovery has not been completed, then states "[I]t is simply unfair for plaintiff to be forced to reveal all of his strategies prior to his opportunity to depose defendants' witnesses. Accordingly, plaintiff has also submitted a supplemental brief to this Court for in camera inspection to assure this Court that plaintiff has a viable claim."
If plaintiff's counsel attempts to present the brief to the judge without providing a copy to defense counsel and without filing the brief with the court clerk, what action should the judge take? The judge asks whether plaintiff's counsel must be reported to the Attorney Grievance Commission.
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. A lawyer's submission of a brief to a judge in camera without providing a copy contemporaneously to opposing counsel violates MRPC 3.5.
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."
Thus the judge has an affirmative duty not to permit ex parte communications. Some judges fulfill this duty by instituting office screening procedures so that improperly submitted materials are rerouted by staff without the judge being exposed to them. Since in this instance the existence of an in camera submission is part of the public record and may invite inquiry, the judge should provide clarification by placing on the record some statement regarding the judge's handling of the matter. For instance, the judge may request, on the record, that plaintiff's counsel provide defense counsel with a copy and remark that such should have been done contemporaneously with the materials delivered to the judge. Or the judge may decline to permit the submission of any in camera materials, and restrict counsel to pleadings and motions as authorized by court rules.
MRPC 8.3(a) states:
"A lawyer having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial questions as to that lawyer's honesty, trustworthiness or fitness as a lawyer shall inform the Attorney Grievance Commission."
MCJC 3B states:
"A judge should take or initiate appropriate disciplinary measures against a judge or lawyer for unprofessional conduct of which the judge may become aware. However, a judge is not obliged to take or initiate disciplinary measures on the basis of information gained while serving with the substance abuse counseling program of the State Bar of Michigan, to the extent the information would be protected under MRPC 1.6 from disclosure if it were a communication between lawyer and client."
If the ex parte submission is an isolated incident and plaintiff's counsel promptly responds to correct the situation as directed by the judge, the judge may conclude that appropriate measures have been taken and that no disciplinary measures or further reporting is required.