Communication with Judges
“Ex parte discussions”
Discussions about judicial ethics sometimes have an “apocalyptic” edge. To a public that can sometimes be wary of government and the individuals who make justice happen, the failure of a judge to uphold the laws is a dangerous omen. Corruption in the judiciary is a sign that government is working for itself and not for the people – it is a symptom of social disease.
The judiciary at any level of government must work very hard and maintain high standards to protect its integrity and independence. Codes of Judicial Conduct govern even the private lives of judges, so as to prevent any appearances of impropriety. For example, judges are usually forbidden to join organizations that are known to discriminate on a basis that is considered to be immoral. A judge’s professional duties are supposed to take precedence over other private activities. Judges are community leaders, and their power stems in large part from the public’s respect for their individual accomplishments, skills, intelligence, and their ability to make the laws work for a community.
When judges fail to uphold the laws they swear to protect, our faith in the judicial system in general is undermined. Without this faith, a court’s order would be meaningless. Injunctions would never be enforced. Money judgments would never be collected. When people assume the judicial system in a country is a corrupt farce, they do not seek relief from a court – they “take the law into their own hands,” as the cliché goes. When that happens, there is no law – there’s just an arbitrary and relative sense of what is “just.”
Lawyers have a substantial role to play in protecting the integrity of the judicial system. They must participate in maintaining very high judicial standards, both inside and outside the courtroom.
According to Canon 2 of the Code of Judicial Conduct, a judge may not allow her relationships to influence her judicial conduct or judgment.
For attorneys, this prohibition presents a bit of a dilemma. Attorneys promise to advocate zealously on behalf of clients. Their job is to sway judicial opinion such that the client gets the results that the client is seeking. Nonetheless, there is a big difference between exploiting the law so that a client obtains judicial relief and exploiting the judge herself in order to obtain relief. Mining your influence with a judge so as to sway opinion in a courtroom undermines the law, destroys the integrity of the judiciary, and leads to nothing but an anarchical disempowerment of government.
As such, a lawyer with a private relationship with a judge may never allow that relationship to impact on the judge’s conduct. The lawyer should know that a judge cannot use her office to advance her private interests.
A lawyer who implies to a client that he has a special influence with a judge is also making a terrible mistake. He is not only harming his own reputation, but he is undermining the integrity of the judiciary. Again, the public’s perception of impartiality matters greatly to the administration of justice. If the public believes that lawyers court special favors with judges – and regularly obtain these special favors – the whole system is endangered.
Ex Parte Communications
We have discussed a bit about a lawyer’s responsibilities when it comes to ex parte communications with judges (recall the example we used regarding obtaining a temporary restraining order in a domestic violence scenario). Here’s a bit more about the ethical duties surrounding ex parte communications with judges.
For one, a judge should not generally engage in ex parte communications with an attorney for one party except for purposes of scheduling, for addressing administrative issues, or for an emergency. The domestic violence scenario which we discussed, whereby a party petitions the court for emergency relief as a means to protect the party’s personal safety, constitutes an exception to the prohibition against ex parte communication (it is an emergency).
It is very important that a judge ensure that, in private contact with a lawyer, no side gains an unfair advantage that hampers the adversarial process that we expect to uncover truth. In order to ensure impartiality, prompt notice must be given to all parties about any ex parte discussions. The opposing party must be given an opportunity to address the issues discussed by one side.
For example, in a domestic violence proceeding in which one spouse is seeking a temporary restraining order, the judge usually schedules a follow-up hearing within about 10 days of the ex parte proceeding in order to ensure there is a need for the restraining order obtained in the ex parte hearing. The defendant must have a chance to address the issues presented by the plaintiff in the initial hearing. A restraining order is a blight on a defendant’s record. Thus, prior to the determination that a permanent order is warranted, the defendant must have a chance to argue against the order’s necessity.
Business Transactions between Lawyers and Judges
The Code of Judicial Conduct, Canon 3, Rule 3.11 holds that a judge may not engage in business that might be perceived as an exploitation of his position. A judge may not generally perform business transactions with lawyers likely to appear before him in court.
State judiciaries are oftentimes elected, as opposed to the federal judiciary, whose members are appointed. State judicial campaigns are often the subject of scrutiny – especially when it comes to lawyers making contributions to a judge’s campaign or party. The Code of Judicial Conduct, Canon 4, Rule 4.2, holds that campaign contributions must be reasonable and may not serve as “camouflage” for illegal gifts or bribes. Some commentators have made the argument that lawyer contributions should be prohibited or banned entirely so as to prevent any undue influence on the conduct of judges.
Gifts to Judges
For the most part, gifts to judges or their families are prohibited, because the public may construe them as attempts to buy influence. Certain exceptions exist, according to the Code of Judicial Conduct, Canon 3, Rule 3.13. Some exceptions include:
- Gifts of resource materials for official use
- Gifts to family members that could not be perceived as attempts to buy influence (if the gift would have been given whether or not the recipient were a judge)
- Gifts of limited value if the lawyer has not appeared and is not likely to appear before the judge.
- Ordinary social hospitality (i.e., the judge is a house guest of the attorney's)
- Gifts incident to a public testimonial (so long as the gift is not from an organization of individuals who often appear before the judge on the same side of litigation, such as a plaintiffs’ attorney organization).