The Bench: Contact with Officials
LACBA Update, May 2001
By Diane L. Karpman, chair, LACBA Professional Responsibility & Ethics Committee. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. The opinions expressed are her own.
Contact with officials is governed by Rule of Professional Conduct 5-300. This rule governs our relationship with members of the bench as to gifts and communications.
The rule prohibits direct or indirect gifts or loans of anything of value to a member of the bench or an employee of the court (law clerks, research attorneys, etc.) unless the personal or family relationship between the member and judge is one where they have customarily given and exchanged gifts.
Customarily given gifts are a quagmire. If your partner is appointed to the bench and you have exchanged birthday presents for a decade, this conduct might be acceptable. Also, during the holidays, gifts are customarily given. Therefore, giving the clerk a box of candy may still be appropriate depending upon the circumstances.
The rule specifically exempts campaign contributions, which can be characterized as participation in the democratic process. Be cautious because strict campaign contribution rules must be followed. For instance, a check should bear the name of the campaign committee and not the name of the judge.
Though the conduct may be ethical, another issue is whether it is "seemly." Frequently, lawyers ask as to the propriety of making a contribution while a case is pending in the judge’s courtroom. Such a contribution may not be restricted by the actual terminology of the rule, but is it seemly for an officer of the court, while a case is pending, to contribute to the reelection campaign? If you do not contribute and opposing counsel generously makes a donation, have you jeopardized your client’s position in the pending matter? Remember, judges are regulated by different standards, i.e., the "appearance of impropriety" as opposed to our less demanding ethical rules. These are difficult questions and are governed by personal morals as well as rules of ethical conduct.
Remember that the Judicial Performance Commission has become more aggressive in prosecuting judges. One of the most striking aspects of many bribery cases has been the "de minimis" amount of the gift. Frequently, lawyers shake their heads in amazement as to the trifling nature of the gift, such as a couple of sweaters or repairs on an automobile.
Once, while flying cross-country, I was seated next to a judicial prosecutor. I asked about the fact that it appears that bench officers endanger their positions for such small items. The prosecutor explained that it is always something small and inconsequential, which is the reason that the member of the bench does not "really believe" that they are engaging in improper conduct. After all, how could someone ever believe that an "oil and lube" could imperil a twenty-year career of outstanding public service? The prosecutor explained that the fact that the gift is modest is the lure that catches many judges because it supports the delusion that nothing wrong is occurring.
Ex parte communications are as problematic. You are prohibited from discussing the merits of a pending matter. However, after counsel has left the courtroom, and while you are gathering your materials, what do you do if the judge makes an innocent inquiry, yet you believe that your response could be interpreted as being on the merits of the matter?
Simply discuss the Dodgers or the weather. Also, traffic and parking spots are safe. Remember, the issue is not about you and your relationship with the judge (who knows you are a courteous and competent lawyer); the issue is your client’s case and your duty not to exacerbate the issue with personal matters that lack relevancy to the matters pending at the bar.
Finally, recognize that, as human beings, our system of communication is flawed at best. Just as you are mindful of your duties and obligations, so too the court is acting in good faith and not attempting to put you or your client in an untenable situation.