One of the television networks has a slogan about “must see T.V.” This morning’s The Arizona Republic has a devastating report from intrepid columnist Laurie Roberts, Probate judge violates ethics code. It is must read rede.
Ms. Roberts has been covering the Maricopa County, Arizona Probate Courts and has repeatedly asserted that the local probate courts are not doing enough to protect the interests of vulnerable wards like Marie Long, whose $1.3 million net worth was eviscerated by fiduciaries, caregivers and lawyers while under the supervision of the probate court. See Old lady could use a lot less court protection.
But now comes this morning’s report, that the judge in Long’s case supposedly sent an ex parte email with a draft copy of her proposed order to counsel on one side soliciting review and comment while not informing the other lawyers on the other side, the ones arguing on behalf of ward Marie Long. This is a departure from the practice in some courts where prevailing party counsel is asked in open court by the judge to prepare the proposed draft order for the judge’s review.
Although the Arizona Supreme Court has already empaneled a 17 member commission to look at the state’s probate courts and to make recommendations for possible improvement, I’m not sure whether or not this morning’s newsworthy development will prompt further inquiry from Arizona’s Commission on Judicial Conduct.
(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law*. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law* applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
(c) A judge may consult with court personnel* whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law* to do so.
The proscription against communications concerning a proceeding includes communications from lawyers, law teachers, and other persons who are not participants in the proceeding, except to the limited extent permitted.
To the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge.
Whenever presence of a party or notice to a party is required by Section 3B(7), it is the party’s lawyer, or if the party is unrepresented the party, who is to be present or to whom notice is to be given.
An appropriate and often desirable procedure for a court to obtain the advice of a disinterested expert on legal issues is to invite the expert to file a brief amicus curiae.
Certain ex parte communication is approved by Section 3B(7) to facilitate scheduling and other administrative purposes and to accommodate emergencies. In general, however, a judge must discourage ex parte communication and allow it only if all the criteria stated in Section 3B(7) are clearly met. A judge must disclose to all parties all ex parte communications described in Sections 3B(7)(a) and 3B(7)(b) regarding a proceeding pending or impending before the judge.
A judge must not independently investigate facts in a case and must consider only the evidence presented.
A judge may request a party to submit proposed findings of fact and conclusions of law, so long as the other parties are apprised of the request and are given an opportunity to respond to the proposed findings and conclusions.
A judge must make reasonable efforts, including the provision of appropriate supervision, to ensure that Section 3B(7) is not violated through law clerks or other personnel on the judge’s staff.
If communication between the trial judge and the appellate court with respect to a proceeding is permitted, a copy of any written communication or the substance of any oral communication should be provided to all parties.
The ABA’s Model Rule is just that, a model, which state jurisdictions can wholly adopt or modify piecemeal. Ultimately, it is the individual jurisdiction’s ethical rules and codes of conduct that are determinative.
Under Arizona Ethical Rule 3.5, during a court proceeding a lawyer may not communicate ex parte with judges unless authorized to do so by law or court order. It remains to be seen if the disciplinary Sword of Damocles falls on the lawyers involved for supposedly and belatedly self-reporting the ex parte communications. As for the probate judge involved, although she is now retired, the question of her conduct in Marie Long’s case, if reviewable, comes within the ambit of the Rules of the Commission on Judicial Conduct.
I don’t have more time this morning to weigh in further but recommend Laurie Roberts’ must read column. There will be more follow-up.