JI-149
March 30, 2020
SYLLABUS
A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge.
References: MCJC 1, MCJC 3(A)(1); MCJC 3(A)(4)(a); MCJC 3(A)(4)(b); MCJC 3(A)(4)(c); MCJC 3(A)(4)(e); JI-84; ABA Model Rule 2.9(A)(3).
TEXT
New attorneys frequently work with a seasoned attorney on a case or have a mentor to help provide substantive guidance in the performance of their job. Even seasoned attorneys find it beneficial to work collaboratively on unique and complex litigation. Similarly, new as well as experienced judges can perform their adjudicative responsibilities better by consulting, either individually or by means of a listserv, with another judge about a pending case. This opinion addresses under what circumstances a judge can discuss a pending case with another judge.
A judge is required to maintain professional competence and be faithful to the law. MCJC 3(A)(1). Additionally, MCJC 3(A)(4)(c) permits a judge to "consult with court personnel whose function it is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges." JI-84 mentions generally that a judge may consult with judicial colleagues and law clerks before issuing a decision.
The ABA Model Rule expressly states the circumstances under which communication between a judge and court staff or another judge is permissible so long as the judge "makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter." ABA Model Rule 2.9(A)(3). Although the Michigan Code of Judicial Conduct (MCJC) does not lay out specific circumstances, they are implied through other provisions of the Code. For example, the first full sentence of the MCJC states, "An independent and honorable judiciary is indispensable to justice in our society." MCJC 1. Canon 3(A)(1) makes clear "[a] judge should be unswayed by partisan interests, public clamor, or fear of criticism." Inherent in these and other provisions of the MCJC is the understanding that the jurist serving as the trier of fact in a case must individually decide the case, independent of the opinion of others.
Additionally, the MCJC permits ex parte communications for scheduling, administrative, and emergency non-substantive matters under certain conditions, prohibits the judge from initiating or considering any ex parte communications unless expressly authorized by law to do so, and permits a judge to obtain advice from a disinterested expert on the applicable law if the judge follows a specific protocol. MCJC 3(A)(4)(a), MCJC 3(A)(4)(e), and MCJC 3(A)(4)(b). All of these provisions ensure that the judge does not obtain factual information about the case at hand outside of the court record. The code would not permit such a transfer of information between two judges discussing a pending matter.
There are multiple scenarios where a jurist may find it useful to discuss the substance of a pending matter with another jurist. A person may find it helpful to review their logic or legal reasoning with another individual to ensure that they are on the right track, or to evaluate if there are flaws in their reasoning. At other times, there are occasions that a situation is so unique that a jurist may seek another judge who has come across a similar situation to help provide ideas about a possible resolution. Sometimes it is simply helpful to just talk aloud to another individual while working out a problem with a case or even the parties or attorneys related to a case. Just as attorneys are assisted in their legal training through mentoring, jurists may find helpful the experience of another judge when trying to resolve a matter.
When a judge believes consulting with another judge would aid them in fulfilling their responsibility to adjudicate a matter with the utmost competence, the judge should first ensure that the consulting judge has no personal relationship to the parties, the attorneys, or to the matter itself before discussing the case. In the case of listservs, the adjudicating judge will be unable to filter out consulting judges who, if consulted individually, could be effectively screened for such a relationship. Therefore, the adjudicating jurist should ensure that the situation is posed in general terms such that the case cannot be identified. Regardless of the consultation method, the consulting judge should avoid providing any factual information that may influence the adjudicating judge’s case that is not part of the adjudicating judge’s court record. Finally, the adjudicating judge must make an independent decision about the matter before the court.
CONCLUSION
A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge.