November 20, 2006
A judge has a duty not to initiate or permit ex parte communications with the judge directly or through court personnel. In seeking not to permit ex parte communications through court personnel, a judge should instruct his or her personnel regarding the requirements of MCJC 3A(4) and the need to avoid improper ex parte communications.
A judge does not perforce violate MCJC 3A(4) whenever a member of his or her court personnel has received an improper communication.
References: MCJC 3A(4), 3A(4)(c); MRPC 3.5(b); JI-85; RI-195, RI-243.
A sitting judge has submitted a request to the Committee addressing in very broad terms the effect of the Michigan Code of Judicial Conduct on ex parte communications between court personnel and litigants and/or their lawyers. Although expressed in very broad terms and without reference to any specific fact pattern, the judge poses in essence the following two questions: 1) whether the Code of Judicial Conduct reaches the conduct of court staff; and 2) if so, whether a judge can be held responsible for improper ex parte communications between court personnel and litigants/lawyers.
MCJC 3A(4) provides:
(4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:
MCJC 3A(4) then provides a number of exceptions to the general prohibition on ex parte communications. For example, MCJC 3A(4)(c) provides as follows:
(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.
This Committee has previously opined that it is improper for a judge to initiate ex parte communications through a judge's clerk. In RI-195, this Committee opined that: "It is improper for the judge to initiate ex parte communications between the clerk and the litigant." This is consistent with the American Bar Association commentary to the ABA Model Code of Judicial Conduct, Rule 3B(7) (the counterpart to MCJC 3A(4)), where the ABA states in the commentary:
A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge's staff.
This conclusion is further supported by the lawyer counterpart to MCJC 3A(4), MRPC 3.5(b). That Rule provides that a lawyer shall not "communicate ex parte with [a tribunal] concerning a pending matter, except as permitted by law . . . ." The official ABA commentary to ABA model rule 3.5(b), which is identical to MRPC 3.5(b), provides in part that the prohibition on ex parte communications applies to not only judges, but also "hearing officers, court clerks exercising important discretionary functions, and similar officers."
Since MCJC 3A(4)(c) expressly contemplates that a judge will consult with his or her court personnel on matters pending before the court, and based on the other authorities cited above, it is clear that the prohibition against ex parte communications was intended to extend to ex parte communications by a litigant/lawyer through a judge's clerk or other court personnel. It is also clear that a judge has an affirmative duty not to permit such ex parte communications and should instruct court personnel appropriately. See e.g., JI-85, where it was noted that:
Some judges fulfill this duty by instituting office screening procedures so that improperly submitted materials are routed by staff without the judge being exposed to them.
As is also clear upon reading MCJC 3A(4), not all ex parte communications are prohibited. For example, ex parte communications for "scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits . . ." are expressly permitted. See, MCJC 3A(4)(a). In RI-243, this Committee offered guidance on the underlying purpose of MCJC 3A(4) and its MRPC counterpart, 3.5(b). In RI-243 this Committee opined that:
The issue concerning propriety of communications, whether applying MRPC 3.5(a)[sic] or MCJC 3A(4) depends upon whether the communication is intended to influence the decision-maker regarding substantive matters or issues on the merits.
In the inquiry submitted to this Committee by the judge, the inquirer has posited a number of different types of communications that might be initiated by various persons, primarily unrepresented persons. By way of example only, one hypothetical posed by the inquirer concerns an unrepresented person explaining to a probate court clerk that they have a relative in the hospital with a mental deficiency, and they are looking for guidance on what can be done to obtain an appropriate consent for the hospital to proceed with medical treatment. While undoubtedly prohibited from rendering legal advice, there would be no problem with the probate clerk recommending retention of a lawyer, or if the inquirer indicated they could not afford one, handing the appropriate forms to the inquirer to initiate the appropriate proceeding.
In the opinion of the Committee, this is not the type of "ex parte" communication (like most of the examples given by the inquirer) sought to be prohibited by MCJC 3A(4), as explained in RI-243. Moreover, as the Committee made clear in JI-85, if the judge has instructed court personnel appropriately to refrain from communicating materials submitted on an ex parte basis to the court, the judge will have fulfilled his or her responsibility to avoid ex parte communications under MCJC 3A(4). Therefore, the fact that a litigant or lawyer may have initiated or attempted to initiate an ex parte communication with a member of the court personnel, even if of the nature prohibited by MCJC 3A(4), does not perforce mean that the judge has violated this Canon. Rather, the judge's conduct would be measured by the extent to which the judge either permitted or initiated the ex parte communication, the extent to which the judge fulfilled his or her responsibilities in properly instructing court personnel on the handling of improperly attempted ex parte communications with the judge, and the extent to which the judge actually received and considered the ex parte information. If, through some inadvertence or happenstance, the judge does receive information ex parte from a party or from some other source about a matter before the court, he or she has an affirmative duty not to consider such information unless he or she is expressly authorized by law to do so in accordance with MCJC 3A(4)(e).
In summary, a judge has a duty not to initiate or permit ex parte communications with the judge directly or through court personnel. In seeking not to permit ex parte communications through court personnel, a judge should instruct his or her staff regarding the requirement of MCJC 3A(4) and the need to avoid improper ex parte communications. A judge does not, however, perforce violate MCJC 3A(4) whenever a member of his or her court personnel has received an improper ex parte communication.