It all starts innocently enough. You are in court (pre-pandemic), doing your usual thing when the court coordinator tells you the Judge wants to see you. For those of you who got in trouble in school (I’ll plead the 5th!), you know it’s never a good sign when an authority figure wants to speak with you. You walk into chambers, and the Judge says, “So what’s going on with the Smith case?” What do you do?
Well, first, here are the rules you as a lawyer must follow: Rule 3.05 of the Texas Rules of Professional Conduct states A lawyer shall not: (a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure.
And here are the rules a Judge must follow: Canon 3A of the Texas Code of Judicial Ethics states that 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 other communications made to the Judge outside the presence of the parties between the Judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the Judge’s direction and control. This subsection does not prohibit: (a) all communications concerning uncontested administrative or uncontested procedural matters.
In my experience, 99% of the time a Judge inquires in this fashion, it is a harmless attempt to administratively figure out what is going on in the case; is this going to be a plea or a trial. This is allowed, but you are skating on thin ice. You can fall right through unless you are careful. So what should you do? You really have three options:
You could tell the Judge everything you know about the case, including your strategies, the state’s weaknesses, etc.
You could reprimand the Judge for unethical conduct, explaining that he is on the brink of breaking the law, and if he does, you must report him to the panel judge.
You could use some common sense, don’t break any rules, and gracefully get out of the situation.
Option #1 will lead you to possible sanctions with the state bar. Pursuing Option #1 allows you to play Russian roulette with your law license. This is not a good option. Option #2 doesn’t work either because there is a good chance that you will be dealing with this Judge for many, many years. In my experience, judges have long memories, and you will make an indelible negative imprint on the Judge’s memory for as long as he remains on the bench. This leads us to Option #3: common sense.
As mentioned, 99% of the time, when a Judge asks you this question, it’s a harmless attempt to figure out procedurally where this case is going. That arguably falls under an exception to rules against ex parte communications. Treat it as such. But, to be on the safe side, bring the prosecutor into the discussion. Answers such as “Thanks for asking Judge, let me get my file and the Prosecutor,” “I was just speaking with the DA about this, let me go get him/her,” or “There are two sides to this, so you probably want to hear the DA’s side too. Let me go get him/her”. This way, there is no rule violation, you haven’t pissed anyone off, and you may make some headway on your case.
What happens in the 1% of cases where ex parte communications are not so innocent? We will address that in future articles.
Good luck, and have fun!