Duty to Report Ex Parte Communication from Attorney
September 4, 2003
CJE Opinion No. 2003-10
You have requested advice from the Committee on Judicial Ethics regarding your ethical obligations in the wake of a telephone call that you received from an attorney on July 16, 2003. You stated in your letter that you became acquainted with this attorney some years ago, when you and she traveled daily on the commuter rail to and from Boston. You were a practicing attorney at that time, and the attorney was a student. The attorney has since graduated, passed the bar, and is now associated with a Boston law firm.
The attorney telephoned you and said that the parents of her son's girlfriend were involved in a divorce proceeding, and she sought some advice. The attorney did not provide you with any names or otherwise identify the parties to the divorce, nor did she state the county in which the divorce proceeding is pending. Likewise, she did not give you the girlfriend's age. You immediately told the attorney that you were prohibited by ethical considerations from discussing or commenting in any way on matters pending before the court. In response, she asked "what she might do." You replied that you could not discuss the matter, but that she might contact the court in which the divorce proceeding is pending and seek some advice there.
You have asked the committee whether you must report the attorney's telephone call to either the Commission on Judicial Conduct or the Board of Bar Overseers. Your letter states that you do not believe that the attorney was attempting to have you intervene in the case, but you are concerned that, without your knowledge of who they are, the girlfriend's parents might appear before you -- or that, when they appear before someone else, one of them might "indicate that they have spoken to a judge regarding their divorce matter."
You certainly have no obligation to report the matter to the Commission on Judicial Conduct. Judges cannot possibly shield themselves from all volunteered improprieties, and your letter contains no hint that you responded inappropriately to the attorney's request for advice.
Canon 3 (C) (1) (a) requires a judge to disqualify herself from proceedings where her "impartiality might reasonably be questioned, including but not limited to instances where . . . [s]he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Because the attorney did not identify the divorcing parents by name or otherwise, however, you acquired from her no facts about any identifiable individual or couple. Accordingly, even assuming that knowledge of the mere fact that the parties to a divorce proceeding are the parents of the girlfriend of the son of one of your commuting acquaintances somehow triggered your obligation to recuse yourself from the parents' divorce proceeding, you presently have no idea who those parents are and, thus, no basis for recusing yourself from any specific proceeding.
With respect to reporting the matter to the Board of Bar Overseers, we look at Canon 3 (B) (3) (b) and Rule 3.5 of the Massachusetts Rules of Professional Conduct, S.J.C. Rule 3:07, 426 Mass. 1303, 1391 (1998). Rule 3.5 of the Rules of Professional Conduct prohibits ex parte communications, except as permitted by law, and other attempts to influence a judge by means prohibited by law. Any such efforts amount to "unprofessional conduct." Canon 3 (B) (3) (b) of the Code of Judicial Conduct as it presently exists requires a judge to "initiate appropriate investigative or disciplinary measures" if she "become[s] aware of unprofessional conduct by a judge or a lawyer." (1) The committee has said that the obligations identified in Canon 3 (B) (3) (b) are "triggered when the judge has sufficient information to conclude that a substantial issue has been raised that a violation [of the Rules of Professional Conduct or a statute] has occurred." CJE Opinion 98-11. See also CJE Opinion 2003-9 and CJE Opinion 2002-4 (penultimate paragraph) regarding a judge's duty to report attorney misconduct to the Board of Bar Overseers.
The facts set forth in your letter to the committee do not raise a substantial issue regarding a violation of the Rules of Professional Conduct. Certainly, the attorney's telephone call was ill-advised and put you in a difficult position. But the attorney's focus on the daughter of the divorcing parents and the daughter's relationship with her son suggests that she was likely seeking not to influence any proceeding, but to obtain information that might aid the daughter in dealing with the inevitable stresses and concerns as the divorce proceeding moves forward. In any event, your prompt, curtailing intervention as soon as the attorney mentioned the divorce proceeding put an end to the conversation before anything suggesting professional impropriety emerged.
In sum, based on the facts contained in your letter, you do not have an obligation to report the incident to the Commission on Judicial Conduct; you do not have an obligation to report the attorney to the Board of Bar Overseers; and you have no basis for recusing yourself from any particular case that might come before you.
1. The cognate provision of the new Code that becomes effective October 1, 2003 is Section 3 D (2). It provides that "[a] judge having knowledge of facts indicating a substantial likelihood that a lawyer has committed a violation of the Rules of Professional Conduct that raises a significant question as to that lawyer's honesty, integrity, trustworthiness, or fitness as a lawyer shall inform the Bar Counsel's office of the Board of Bar Overseers."