March 7, 1994
A lawyer may not draft findings of fact and conclusions of law in a matter when contacted ex parte by the presiding judge to do so. If the lawyer cannot persuade the judge to correct the ex parte contact, the lawyer may have a duty to report the judge's conduct to the Judicial Tenure Commission.
References: MRPC 1.4, 1.7(b), 3.5(b), 8.3(b), 8.4(e); MCJC 3A(4); MCR 2.602(b); In re Sturgis, 529 So2d 281 (Fla, 1988); The Florida Bar v. Mason, 334 So2d 1 (Fla, 1976).
After a lengthy trial, the judge takes the case under advisement. In due course, a decision is reached by the judge. The judge advises the law clerk to telephone the prevailing party's counsel and to request from the prevailing party's counsel findings of fact and conclusions of law. The lawyer has asked three questions: how should the lawyer respond to the judge's request; is there any duty to disclose the incident; and is there any duty to report the incident?
Under MCR 2.602(B), either party may draft an order but is required to have the order signed by the opposing counsel, to forward the proposed order to the opposing counsel with a notice indicating that the opposing party has seven days in which to object to the proposed draft, or to notice the order for settlement before the court. The lawyer should not draft the order without following the requirements of MCR 2.602(B).
A lawyer is forbidden to communicate ex parte with a judge concerning a pending matter except as permitted by law. MRPC 3.5(b). The lawyer cannot draft the findings of fact and conclusions of law and submit them to the judge for the judge's use without notice to the other party. In the case of The Florida Bar v. Mason, 334 So2d 1 (1976), the lawyer had ex parte communication with a member of the Florida Supreme Court and concluded from that communication that the judge had been asked to draft the majority opinion in favor of the lawyer's client. The lawyer offered to assist in the drafting of the opinion and submitted a memorandum of law to the drafting judge as well as other members of the court, without notice to opposing counsel. The lawyer also refused to respond to a specific inquiry from opposing counsel regarding the ex parte communication. The lawyer was reprimanded and suspended from practice for a period of one year.
A lawyer is obligated to disclose to the lawyer's client events which may affect the case. MRPC 1.4. The reaction of the lawyer to the communication may negatively impact the case of the client. Further, the interest of the lawyer may conflict with the interest of the client, and MRPC 1.7(b) would require the lawyer to disclose the communication to the client and explain to the client the conflict that arises.
The judge's request is covered by MCJC 3A(4) which 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."
It is improper for the judge to initiate ex parte communications between the clerk and the litigant. Whether the lawyer needs to inform the Judicial Tenure Commission of the violation depends on an interpretation of MRPC 8.3(b) which states:
"(b) A lawyer having knowledge that a judge has committed a significant violation of the Code of Judicial Conduct that raises a substantial question as to the judge's honesty, trustworthiness, or fitness for office shall inform the Judicial Tenure Commission."
The duty to report depends upon the seriousness of the offense. MRPC 8.3(b) Comments. The Florida Supreme Court faced the issue of ex parte communication between lawyers and judges in In re Sturgis, 529 So2d 218 (Fla, 1988). In that case, the court reviewed the activities of a Florida judge, one of which was ex parte communications with lawyers and parties during the progress of cases involving custody of children. Following its investigation, the Judicial Qualifications Commission found such ex parte communication to be a violation of the code of judicial conduct, and the Florida court upheld and adopted the Commission's decision. The judge received a public reprimanded for the ex parte contacts and several other violations of the code of judicial conduct.
The most difficult question is how the lawyer handles this matter with the judge. While the lawyer may not be obligated to report this to the Judicial Tenure Commission, a lawyer may not knowingly assist a judge in conduct which is a violation of the Michigan Code of Judicial Conduct. MRPC 8.4(e). The lawyer cannot agree to do the work without full disclosure to the other party. The lawyer must inform the judge that the lawyer will notify the other party that the lawyer is drafting the statement of facts and conclusions of law and will serve a copy on opposing counsel, filing the same with the court. The judge's reaction to the position of the lawyer could change the lawyer's duty under MRPC 8.3(b).
In order to determine whether the judge's communication is a "serious" violation of the Code which raises a "substantial" question with regard to the judge's honesty, trustworthiness or fitness for office, the lawyer may wish to bring MCJC 3A(4) and MRPC 3.5(b) to the attention of the judge and urge the judge to notify opposing counsel contemporaneously when such a request is made. If the judge declines the recommendation or if the lawyer knows the judge frequently asks counsel to prepare findings ex parte, the lawyer may be required to report the judge's conduct.