October 5, 1995
A lawyer may not communicate with a judge concerning a matter pending before that judge, except for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits.
References: MRPC 3.5; MCJC 3A(4); Op 96. CI-1019 is superseded.
Defense counsel obtained the release on conditions of a habeas petitioner; the state's appeal is pending. Pretrial Services is required to notify the court if the defendant violates the conditions of the release. Opposing counsel has written to Pretrial Services about an intervening arrest of the defendant, and has copied in the presiding judge and defense counsel. Defense counsel knows no charges resulted from the arrest, and asks about the propriety of writing Pretrial Services, with a copy to the presiding judge and opposing counsel.
The Committee does not have jurisdiction to discuss the conduct of someone other than the inquirer or past conduct. Therefore we will not address the conduct of the opposing counsel.
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), effective September 1, 1995, states:
"(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:
"(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:
"(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and
"(ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.
"(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
"(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.
"(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
"(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so." Emphasis added.
Since the inquirer intends to contemporaneously copy the opposing counsel, the communication is not ex parte. The proposed letter is, however, "other communication made to the judge outside the presence of the parties" and, to the extent it relates to the conditions of the defendant's release, it concerns a pending or impending proceeding. The proposed letter does not fall within the exceptions listed in MCJC 3A(4) - it is neither initiated by the judge, nor is it directed merely to court personnel, nor is the author "disinterested." The subject does not concern scheduling, administration, nor emergency. There is no reason to believe that the inquirer could not provide any necessary clarification of the incident at the time the judge schedules a determination on the defendant's fulfillment of the conditions of release.
A letter addressing the substance of a pending matter, which is directed to or copies the presiding judge, is improper even if the opposing counsel is contemporaneously sent a copy of the same letter. Traditional ways of communicating with a judge about the substance of a pending matter are by pleading and oral argument. We are unaware of any court rule, statute, or other legal authority which authorized communication with the presiding judge in any other manner. Cf MCJC 3A(4)(e), a judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Emphasis added.
MRPC 8.4(c) further prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and MRPC 8.4(e) prohibits a lawyer from knowingly assisting a judge in conduct that is a violation of the Code of Judicial Conduct. The reciprocal nature of these duties, prohibited to the judge in the Michigan Code of Judicial Conduct and prohibited to the lawyer if it would cause a violation by the judge, was endorsed as early as 1946, when this Committee issued Opinion 96. In deciding the time at which a trial brief must be served upon opposing counsel, we stated in Opinion 96:
"Hence, the reciprocal relationship of bench and bar are already established with reference to the matter of ex parte communications. No argument, either oral or written, which is intended or calculated to influence the court, may ethically be made by a lawyer to a judge in the absence of opposing counsel. Inasmuch as a brief constitutes a written argument, it must be served upon opposing counsel simultaneously with its being filed with the court. We believe the same rule should be followed with respect to the filing of copies of any record of proceedings, the writing of letters or any other method adopted by a lawyer in communicating with the judge in connection with a pending cause."
The issue concerning propriety of communications, whether applying MRPC 3.5(a) or MCJC 3A(4), depends upon whether the communication is intended to influence the decision-maker regarding substantive matters or issues on the merits. Communication, whether written or verbal, of the type contemplated by the inquirer would be improper under these rules.
CI-1019 which allowed argumentative correspondence to be sent to the assigned judge provided that the lawyer served a copy on opposing counsel was based on the former Michigan Code of Professional Responsibility DR 7-110(B)(2) and DR 1-102(A)(4), which provisions were not carried over to the Michigan Rules of Professional Conduct. MCPR DR 7-110(B) provided:
"In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
"(1) In the course of official proceedings in the cause.
"(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
"(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
"(4) As otherwise authorized by law."
MCPR DR 7-110(B)(2) clearly permitted a lawyer to correspond with the court, in writing, so long as a copy of the correspondence is delivered to the opposing counsel "promptly." MRPC 3.4(a) and (b) are substantially different from the former rule and CI-1019 is superseded.