Ethics and Professional Liability – Georgia Bar Rule Case Studies
Part 5 – Ex Parte Communication
This article series has covered a variety of case studies that we discuss at my Attorney Ethics and Professional Liability CLE seminar. The group input is always interesting, and we all learn something from the discussions. Previous case study articles include:
- Potential conflicts of interest
- Threat of criminal prosecution
- Communication with a represented party
- Illegally [or Questionably] obtained evidence
While I normally use hypothetical examples for each of the case studies, I modified this Ex Parte communication example based on a situation that a relatively new lawyer recently asked about.
Case Study #5 – Can you approach the judge, either socially or professionally?
You’re at a large gathering for a family member’s birthday celebration. One of the guests is a judge – a long-time friend of the family. You know the judge well, see him regularly in social situations, and even gave a little money to his re-election campaign. You’ve had several cases in front of this judge over the past few years, including a current case with a motion pending. All lawyers in the case have consented to the pending motion.
Should you approach the judge at all? If so, is it ok to ask about the pending motion?
Here is what the Georgia Bar Rules provide
There are two applicable Bar Rules:
There’s no rule that requires lawyers to avoid all contact with judges. This was a social environment, so it is perfectly fine to be social. There are lots of things you can discuss, like the weather, sports, or birthdays. Unless you are subject to a case confidentiality agreement, you could even discuss past cases. But it’s best to avoid discussing the pending case.
In reality, you could probably even ask about the pending ruling since all lawyers had consented to the motion, but why risk even a hint of impropriety or accusation of partiality? You don’t want to hear this during litigation: “But they were talking about the case at a cocktail party!” The opposing attorney then tries to link the discussion to some negative event or adverse decision in the case, and a motion for recusal may follow.
While judges can make their own decisions, social banter (or even political contributions) won’t cause a recusal. However, save work discussions for a work environment, especially when opposing counsel is present.
This applies to non-lawyers as well!
Please share the lessons of this discussion with others in your firm. Remember, we are also responsible for the actions of non-lawyers in our firms.
Schedule a seminar for your group or Bar Association
If you think these sorts of discussions could be helpful to your firm, local Bar Association, or other group, please contact me at 770-751-8050 or firstname.lastname@example.org about scheduling a Legal Ethics and Professional Liability seminar.
If you can’t make it to a seminar, please join my LinkedIn group to participate in the online discussion – Attorney Ethics and Professional Liability.
Be careful out there, it’s a minefield!