Transcript Document

Ex Parte Contacts:
Yes or No
7/20/2015
1
General Rule
• Avoid Ex Parte Contacts with Lawyers
• Duh.
• In Re Martin, 302 N.C. 299 (1981): Judge
removed from office for inter alia initiating night
time meetings with female defendants to discuss
their cases.
• In Re Crutchfield, 289 N.C. 597 (1975): Judge
censured for signing orders on ex parte
application of one side with no statutory
authority.
7/20/2015
2
In Re Nowell:
• “We are entirely convinced that the ex
parte disposition of a criminal case out of
court, or the disposition of any case for
reasons other than an honest appraisal of
the facts and law as disclosed by the
evidence and the advocacy of both parties,
will amount to conduct prejudicial to the
administration of justice.”
• 293 N.C. 235 (1977)
7/20/2015
3
And More . . .
• In Re Edens, 290 N.C. 299 (1976): Taking a
guilty plea in the Clerk’s office from defense
counsel when DA not present and entering PJC
improper. Judge censured.
• In Re Stuhl, 292 N.C. 379 (1977) and In Re
Brown, 351 N.C. 601 (2000)(similar)
• In Re Kivett, 309 N.C. 635 (1983): Improper to
modify probation terms without consent of or
notice to DA upon ex parte request of defense
counsel
7/20/2015
4
Recent State Bar Ethics
Opinion
• 2001 Formal Ethics Opinion 15
• April 19, 2002
• “A lawyer may not communicate ex parte
with a judge in reliance upon the
communication being permitted by law
unless there is a statue or case law
specifically and clearly authorizing the
communication.”
7/20/2015
5
Facts
On more than one occasion, Attorney A has gotten a
client's bond modified in a court proceeding only
to have the prosecutor communicate with the
judge ex parte and obtain a reinstatement of the
original bond. The prosecutor, in reliance upon
the statement "at any time" in G.S. 15A-539,
presumes that he or she is permitted by law to
engage in these ex parte communications without
notice to Attorney A or the client.
7/20/2015
6
Issue
• Does the ex parte communication with the
judge violate Rule 3.5(a)(3)?
7/20/2015
7
Revised Rules of Professional Conduct
• Rule 3.5(a)(3) prohibits ex parte
communications with a judge or other
official except under the following
circumstances:
7/20/2015
8
Rule 3.5(a)(3)
• (i) in the course of official proceedings;
• (ii) in writing, if a copy of the writing is
furnished simultaneously to the opposing party;
• (iii) orally, upon adequate notice to opposing
party; or
• (iv) as otherwise permitted by law.
7/20/2015
9
Law
• G.S. 15A-539 of the North Carolina
General Statutes states as follows: "A
prosecutor may at any time apply to an
appropriate district court judge or superior
court judge for modification or revocation
of an order of release under [Article 26]."
The statute does not say that the
application to the judge may be made ex
parte .
7/20/2015
10
Question:
• "A prosecutor may at
any time apply to an
appropriate district
court judge or
superior court judge
for modification or
revocation of an order
of release under
[Article 26].” NCGS
15A-539
7/20/2015
• A lawyer may have
ex parte contact with
a judge when
“authorized by law”
Rule 3.5(a)(3)(iv)
• Does this statute
“authorize” an ex
parte contact “by
law”?
11
ANSWER:
• No. Such contact violates the Revised
Rules of Professional Responsibility.
• The State Bar says:
7/20/2015
12
“Lawyers must act in good faith
when determining whether an ex
parte communication is
‘permitted by law’ particularly
because such communications
limit the adverse party’s right to
be heard and to be represented by
counsel. …
7/20/2015
13
“Therefore, a lawyer may not
engage in an ex parte
communication with a judge or
other official in reliance upon the
communication being ‘permitted
by law’ unless there is a statute or
case law specifically and clearly
authorizing such communication. .
7/20/2015
14
“Such authorization may not
be inferred by the absence in
the statute or case law of a
specific statement requiring
notice to the adverse party or
counsel prior to the ex parte
communication.
7/20/2015
See RPC 237.”
15
RPC 237
• Similar ruling under different facts under
previous version of Rules of Professional
Conduct.
7/20/2015
16
Analysis:
• What is an ex parte communication?
• “By definition, ex parte orders are made
without notice to or contestation by the
party adversely interested, Black's Law
Dictionary 517 (rev. 5th ed. 1979).” In Re
Alamance County Court Facilities, 329
N.C. 84 n.7
7/20/2015
17
Rule 3.5(a)(3) says:
• No ex parte communications with a judge
except
• And then four exceptions
7/20/2015
18
1. In the course of official
proceedings.
• If a party is given notice of a hearing or
trial and does not show up, then the
proceedings are not ex parte.
7/20/2015
19
2. In writing with a copy to
the other side.
• This is common.
• Pleadings, obviously.
• Letters to the court.
– But Limited: 98 Formal Ethics
Opinion 13
7/20/2015
20
98 F.E.O. 13 says “informal written
communications with a judge should be
limited to the following”:
• Written communication pursuant to court’s
instructions;
• Written communications relevant to emergencies,
changed circumstances, or scheduling matters;
• Written communications with the consent of the
other side;
• Written communications allowed by law.
7/20/2015
21
3. Orally, upon adequate notice
to the other side
• What is adequate? Depends on
circumstances.
• Motions to quash, other matters that one
side wants heard quicker than the ordinary
course.
7/20/2015
22
4. As otherwise permitted by
law
• TROs in some situations (Rule 65)
• Motions to Extend Time to Serve Record
on Appeal
7/20/2015
23
Review: Rule 3.5(a)(3)
No ex parte contacts except:
• (i) in the course of official proceedings;
• (ii) in writing, if a copy of the writing is
furnished simultaneously to the opposing party;
• (iii) orally, upon adequate notice to opposing
party; or
• (iv) as otherwise permitted by law.
7/20/2015
24
A Possible Fifth:
• With consent.
• One party approaches the Court about
whatever – scheduling, bond reduction,
change venue – with a proposed order and
the consent of the other party.
• Anything wrong with that? See In Re
Inquiry Concerning Judge Tucker, 348 NC
677
7/20/2015
25
And what about scheduling?
• State v. McNeill, 349 NC 634: “Assuming,
arguendo, that the judge's comments and the
deputy clerk's testimony somehow showed an ex
parte communication with the prosecutor, such
ex parte communication relates only to the
administrative functioning of the judicial system
and would not be improper.”
•
7/20/2015
26
And
• State v. Locklear, 349 NC 118
• “a defendant does not have a right to be
present when the State makes a routine
communication with the court, prior to
trial, concerning a scheduling matter.”
7/20/2015
27
97 Formal Ethics Opinion 3
• State Bar: A lawyer
may engage in ex
parte communication
re: scheduling only if
“necessitated by the
administration of
justice or exigent
circumstances and
diligent efforts to
notify opposing
counsel have failed.”
7/20/2015
• This is an acceptable
ex parte contact under
Rule 3.5 if it is an oral
motion made with
“adequate notice” to
the other side, and
what is “adequate”
depends on the
circumstances.
28
Before a lawyer communicates with you
ex parte, he/she should tell you:
• That the lawyer is about
to engage in an ex parte
contact;
• Why it is necessary to
speak ex parte;
• The authority (statute,
rule, etc.) that permits the
ex parte contact;
• The status of attempts to
notify the other side.
7/20/2015
• After hearing these
four things, you
decide whether to let
the lawyer speak
further and be heard.
• Source: 98 Formal
Ethics Opinion 12
29
What about the Judge?
• RRPCs govern the lawyer’s
• What does the Code of Judicial Conduct
say?
7/20/2015
30
Canon 3: Impartiality
• Canon 3/A/4
• “A judge should accord to every person
who is legally interested in a proceeding,
or his lawyer, full right to be heard
according to law, and, except as authorized
by law, neither initiate nor consider ex
parte or other communications concerning
a pending or impending proceeding.”
7/20/2015
31
State v. McHone, 348 NC 254
• Where defendant alleged that State sent
judge a proposed order and did not send a
copy to defense counsel, evidentiary
hearing required on whether defendant’s
due process rights were violated.
• Court characterized this as an ex parte
contact and appears to assume it is
improper.
7/20/2015
32
Other cases:
• State v. Rhome, 120 NCApp 278: During trial,
judge discussed unwillingness of witness to come
to court in response to a subpoena with
prosecutor in chambers without notice to
defendant or defense counsel. Court assumes this
was improper.
• State v. Moctezuma, 141 NCApp 90, Improper to
exclude defendant and his attorney from hearing
concerning identity of confidential informant.
7/20/2015
33
State v. Hunt, 123 NCApp 762
• On 22 September, defendant arrested and
charged with burglary, sexual offense and
misdemeanor assault. Defendant was
released on a $ 1,000.00 bond same day.
• Prosecutor later submits indictments for
these and new felony assault charge to the
grand jury, which indicts defendant.
7/20/2015
34
Then . . .
• Prosecutor asks Senior Resident to set a
bond on the felony assault, which the judge
does.
• Defendant is convicted and appeals, saying
this was an ex parte contact.
7/20/2015
35
Court says:
• “At the time the second arrest order was
issued, defendant was not in custody [and]
he had not been released from custody to
answer the charges in the bill that he had
committed [felony] assault, the charge for
which the new bond was set. We hold that
the $ 30,000 bond was not a modification,
but a new bond for the new felony charge.”
7/20/2015
36
And. . .
• “Defendant . . . alleges that it was improper for
the prosecutor to approach the superior court
judge to set the new bond without notifying his
attorney. He argues that such conduct is unethical
. . . We disagree. As stated above, the $ 30,000
bond was not a modification, but a bond set for
the new felony indictment. There was no
improper conduct on the part of the prosecutor
when he asked the judge to set bond for this new
charge.”
7/20/2015
37
So when you have a new charge,
• NCGS 15A-539 ("A prosecutor may at any
time apply to an appropriate district court
judge or superior court judge for
modification or revocation of an order of
release under [Article 26]." ) DOES allow
the judge to set a bond on ex parte contact
of the prosecutor, even if the defendant has
a lawyer on other charges.
7/20/2015
38
To Compare:
• State v. McHone
• New charge and no
existing bond
• Defendant has other
charges and a lawyer
• Prosecutor may
approach judge ex
parte re: bond.
7/20/2015
• 2001 F.E.O.15
• Existing charge and
existing bond
• Defendant has lawyer
• Prosecutor may not
approach judge ex
parte re: bond.
39
To Review:
• “A lawyer may not communicate ex parte
with a judge in reliance upon the
communication being permitted by law
unless there is a statue or case law
specifically and clearly authorizing the
communication.”
• 2001 F.E.O. 15
7/20/2015
40
And since the Code of Judicial
Conduct uses the same language,
• “except as authorized by law,”
• It seems that Judges should not have ex
parte contacts with lawyers unless they are
specifically and clearly authorized by
statue, rule, or case law.
7/20/2015
41