Ex Parte Contacts: Yes or No 11/27/2018

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. 11/27/2018

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) 11/27/2018

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 11/27/2018

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.” 11/27/2018

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. 11/27/2018

Issue Does the ex parte communication with the judge violate Rule 3.5(a)(3)? 11/27/2018

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: 11/27/2018

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. 11/27/2018

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 . 11/27/2018

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 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”? 11/27/2018

ANSWER: No. Such contact violates the Revised Rules of Professional Responsibility. The State Bar says: 11/27/2018

“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. … 11/27/2018

“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. . 11/27/2018

“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. See RPC 237.” 11/27/2018

RPC 237 Similar ruling under different facts under previous version of Rules of Professional Conduct. 11/27/2018

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 11/27/2018

Rule 3.5(a)(3) says: No ex parte communications with a judge except And then four exceptions 11/27/2018

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. 11/27/2018

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 11/27/2018

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. 11/27/2018

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. 11/27/2018

4. As otherwise permitted by law TROs in some situations (Rule 65) Motions to Extend Time to Serve Record on Appeal 11/27/2018

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. 11/27/2018

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 11/27/2018

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.” 11/27/2018

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.” 11/27/2018

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.” 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. 11/27/2018

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. After hearing these four things, you decide whether to let the lawyer speak further and be heard. Source: 98 Formal Ethics Opinion 12 11/27/2018

What about the Judge? RRPCs govern the lawyer’s What does the Code of Judicial Conduct say? 11/27/2018

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.” 11/27/2018

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. 11/27/2018

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. 11/27/2018

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. 11/27/2018

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. 11/27/2018

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.” 11/27/2018

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.” 11/27/2018

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. 11/27/2018

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. 2001 F.E.O.15 Existing charge and existing bond Defendant has lawyer Prosecutor may not approach judge ex parte re: bond. 11/27/2018

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 11/27/2018

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. 11/27/2018