Do’s and Don’ts: Ex Parte Contacts with the Judiciary
by Hon. Michael D. Marcus (ret.)
(County Bar Update, January 2008, Vol. 28, No. 1)

 

Do’s and Don’ts: Ex Parte Contacts with the Judiciary

 

By Hon. Michael D. Marcus (ret.), mediator and arbitrator with ADR Services, Inc. He is a member of the State Bar of California Board of Governors and a former chair and current member of LACBA’s Professional Responsibility and Ethics Committee. The opinions expressed are his own.

 

Every lawyer knows nonconsensual ex parte contacts with a judge or judicial officer, including court personnel who participate in the decisionmaking process, on the merits of a contested matter are prohibited by Rule of Professional Conduct 5-300(B). Less known are statutory and common law interpretations of this rule.

 

Contested matter “extends to communications of information in which counsel knows or should know the opponents would be interested. (Citation omitted.)....[T]he standard generally bars any ex parte communication by counsel to the decision maker of information relevant to issues in the adjudication.” (Zaheri Corp. v. New Motor Vehicle Board (1997) 55 Cal. App. 4th 1305, 1317.) Such matters include cases that “may come before” the judge (In re Hancock (1977) 67 Cal. App. 3d 943, 948) and those that may come back after appeal. (COPRAC Formal Op. 1984-78; note, however, that an attorney may write a scholarly article for publication about a case on appeal in which the attorney is of record. [Los Angeles County Bar Association Ethics Ops. 343 (1974) and 451 (1988)].)

 

Counsel may discuss purely administrative matters ex parte with court support staff. (See Blum, et al. v. Republic Bank, et al. (1999) 73 Cal. App. 4th 245, 248-249, which reversed imposition of sanctions based upon a perceived violation of a local superior court ex parte rule rather than Rule 5-300(B) where counsel called a court clerk and requested that a status conference be scheduled.)

 

Improper ex parte contacts in both civil and criminal proceedings:

  • Correspondence to the judiciary (Heavey v. State Bar (1976) 17 Cal. 3d 553).
  • Discussing peremptory challenge strategy (People v. Ayala (2002) 24 Cal. 4th 243, 262 [error to hear ex parte a prosecutor’s theory of jury selection]).
  • Seeking a restraining order that affects substantial free speech interests (United Farm Workers of America v. Superior Court (1975) 14 Cal. 3d 902, 913).

Improper ex parte contacts in criminal proceedings:

  • A defendant’s change of venue motion (McGowan v. Superior Court (1977) 75 Cal. App. 3d 648, 652).
  • A defendant’s subpoena duces tecum of a third party (Department of Corrections v. Superior Court (1988) 199 Cal. App. 3d 1087, 1091-1094 [court may privately review and seal supporting documents in a subpoena duces tecum that contain privileged information; otherwise, the prosecutor may be present]).
  • A defendant’s nonstatutory motion to dismiss (People v. Huston (1989) 210 Cal. App. 3d 192).
  • Communications by both the prosecution and defense regarding sentencing (In re Calhoun (1976) 17 Cal. 3d 75, 83-84).
  • A defendant’s motion for new trial based on claimed ineffectiveness of defense counsel (People v. Dennis (1986) 177 Cal. App. 3d 863).

Statutory exceptions for ex parte or in camera communications in both civil and criminal proceedings:

  • Pursuant to Evidence Code Section 915, when claim of privilege is made under Evidence Code Sections 1040 et seq. (official information [Section 1040], identity of an informer [Section 1041], peace or custodial officer personnel records [Section 1043; see also People v. Memro (1983) 38 Cal. 3d 658, 679], peace or custodial officer complaints [Section 1045], medical or psychological records]) or Code of Civil Procedure Section 2018.030 (work product) and cannot be ruled upon without disclosure of privileged information.
  • When a privilege holder (lawyer, physician, psychotherapist, or member of the clergy) who has had documentary evidence seized pursuant to a search warrant requests that a seized item not be disclosed. (Penal Code Sec. 1524(c), (c)(1), (c)(2), (c)(2)(i).)

Nonstatutory exceptions for ex parte communications in civil and criminal proceedings:

  • Settlement discussions (Zaheri Corp., 55 Cal. App. 4th at 1317).
  • Advising a trial judge that a client may testify untruthfully (People v. Brown (1988) 203 Cal. App. 3d 1335, 1338).
  • Where open disclosure of information would compromise the safety of individuals (Zaheri Corp., 55 Cal. App. 4th at 1317-18 [no emergency shown where counsel believed that an opposing party was carrying a concealed weapon]).

Statutory exceptions for ex parte or in camera (and sometimes privileged) hearings in criminal proceedings:

  • Defendant’s financial statement concerning ability to employ counsel (Penal Code Sec. 987(c); note, however, the exceptions in Section 987(c) and Section 987.8(a), (b), and (c)).
  • Affidavit of a first attorney in a capital case providing the reasons why a second attorney should be appointed as co-counsel (Penal Code Sec. 987(d); see also Keenan v. Superior Court (1982) 31 Cal. 3d 424, 430).
  • In a trial of a capital case or a case where the defendant is being prosecuted for noncapital murder and has a prior conviction for first- or second-degree murder, the indigent defendant’s counsel’s request by confidential affidavit for funds for investigators, experts, and others for the preparation and presentation of a defense (Penal Code Sec. 987.9(a)).
  • Upon showing of good cause (limited to threats or possible danger to safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement), prosecution or defense request to deny, restrict, or defer discovery (Penal Code Sec. 1054.7; see also Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 383 holding that in criminal discovery matters, “the court has inherent discretion to conduct in camera hearings to determine objections to disclosure based on asserted privileges.”).
  • Prosecution request that a judge extend immunity to a witness (Penal Code Sec. 1324; see also People v. Randolph (1970) 4 Cal. App. 3d 655, 661).
  • Prosecution request for the issuance of a search warrant (Penal Code Sec. 1523).

Nonstatutory exceptions for ex parte communications in criminal proceedings:

  • Defendant’s reasons for discharging appointed counsel (People v. Marsden (1970) 2 Cal. 3d 118).
  • Defense offer of proof in a motion to sever why inconsistent defenses at trial require that the charges be severed (People v. Memro, 11 Cal. 4th 786, 851.)

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