Communication email from the Chief Clark County District Court Judge to all District Court and Senior Judges regarding Ex-parte communication. A must read.

From: Bell, Linda
Sent: Monday, July 27, 2015 12:19 PM
To: Escobar, Adriana; ‘Alvin R. Kacin’; Henderson, Bill; ‘Bridget Robb’; Duckworth, Bryce; Ellsworth, Carolyn; Hoskin, Charles; Moss, Cheryl; Weller, Chuck; Judge Steinheimer; Steel, Dianne; Giuliani, Cynthia; ‘Cynthia Lu’; Barker, David; David Hardy; ‘Judge David Humke’; Gentile, Denise; Herndon, Douglas; Smith, Douglas; ‘Egan Walker’; Cadish, Elissa; Gonzalez, Betsy; ‘Elliott Sattler’; Johnson, Eric; Doherty, Francis; Sullivan, Frank; ‘Judge Gary Fairman’; Sturman, Gloria; ‘James Todd Russell’; ‘‘; Elliott, Jennifer; Togliatti, Jennifer; ‘‘; Wiese, Jerry; Walsh, Jessie; ‘Jim Shirley’; Crockett, Jim; ‘Jim Wilson’; Kishner, Joanna; Hardy, Joe; ‘John Schlegelmilch’; Delaney, Kathleen; Cory, Kenneth; Earley, Kerry; ‘Kimberly Wanker’; ‘Leon A. Aberasturi’; ‘Lidia S. Stiglich’; Brown, Lisa; ‘Lynne Simons’; Denton, Mark; Harter, Mathew; ‘Michael Montero’; Villani, Michael; Leavitt, Michelle; Allf, Nancy; ‘Nancy Porter’; ‘Nathan T. Young’; ‘‘; Burton, Rebecca; Hughes, Rena; Scotti, Richard; Bare, Rob; ‘Robert W. Lane’; Teuton, Robert; Israel, Ronald J; Pomrenze, Sandra; ‘Scott N. Freeman’; Miley, Stefany; ‘‘; Johnson, Susan; Scann, Susan; Ritchie Jr., Arthur; ‘Thomas Stockard’; ‘Thomas W. Gregory’; Williams, Tim; Adair, Valerie; Ochoa, Vincent; Kephart, William; Potter, William; Voy, William
Subject: NDJA Update: Standing Committe on Judicial Ethics

Sorry – I forgot to include this in my prior e-mail.

The Standing Committee on Judicial Ethics issues a decision on 7/24 that a guardianship judge may not solicit or consider ex parte information from a non-party in a guardianship case.  The judge may also not initiate an investigation based on ex-parte information.

I know not all of us deal with guardianships on a regular basis, but there are definitely some broader important concepts to remember from this opinion.  Under Rule 2.9(A)  “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 or their lawyers concerning a pending or impending matter.”   The rule is based on information about a matter – not who is giving you the information.  So, just because the person providing the information is not a party or a lawyer in the case, the communication about the matter pending before you is still an ex parte communication.   And it’s not just matters before you (pending), but matters that could end up in front of you (impending).

Per the Opinion, “As ex parte communications are particularly pernicious, a judge must act with great care when a non-party communicates or attempts to communicate with the judge on substantive matters in a pending proceeding.  Receiving or acting on such communications may not only impact a judge’s impartiality in deciding the matter, but may also place the judge in the untenable position of advocating for once of the parties or allowing one party to gain an advantage over another party.”

And even if a judge discloses the ex-parte communication, it still can be a violation:  “Even if the judge notifies all parties of the substance of the communication and allows them to respond, . . .a judge who initiates or willingly participates in ex parte discussions of substantive matters has violated the {code of conduct].”

If a judge does received an unauthorized ex parte communication bearing on the substance of a matter, the judge shall make provision promptly to notify the parties of the substance of the communication and provide the parties with an opportunity to respond.

Think here about things like letters in support of a defendant at sentencing sent directly to the judge by the defendant’s family, or direct correspondence from an inmate – these are two very common types of ex-parte communication.   Different judges handle this type of communication differently – returning the mail stamped “received but not read”; lodging the information in the record and disclosing the contents to both sides; returning to the sender with a letter saying the judge has not read it because it was improper.

Not every ex parte communication is improper.  There are five exceptions to the rule set out in 2.9(A):

(1)     For scheduling, administrative or emergency purposes, which does not address substantive matters if (a) the judge reasonably believes no party will gain any type of advantage as a result of the communication; and (b) the judge promptly notifies all other parties of the substance of the communication and gives the parties an opportunity to respond.

(2)    The judge may obtain the advice of a disinterested expert on the law (like another lawyer or a law professor) if the judge give advance notice to the parties of the person to be consulted and the subject matter of the consultation, and affords the parties a reasonable opportunity to object and respond to both the notice and to the advice received.

Note that this rule does not prohibit a judge from consulting the Standing Committee on Judicial Ethics, a legal expert or legal counsel regarding the judge’s compliance with the code of Judicial Conduct.

(3)    A judge may consult with court staff whose functions are to aid the judge, or with other judges, provided the judge makes reasonable efforts to avoid receiving factual information that is not part of the record and the judge does not abrogate the responsibility to personally decide the matter.  The judge also needs to avoid discussing cases with appellate judges who may be ruling on the matter.

(4)    With consent of the parties the judge may confer separately with the parties and lawyers in an effort to settle matters pending before the judge.

Remember, this does not apply in criminal cases under  Cripps v. State, 122 Nev. 764, 137 P.3d 1187 (2006).  Cripps expressly prohibits judicial participation in formulation or discussion of plea agreements.  A judge in a criminal case may only indicate on the record whether the judge  is inclined to follow a particular sentencing recommendation.

(5)    When authorized by law.

Some examples include ex parte motions seeking orders shorting time and  ex parte applications for temporary protective orders.

The rule also prohibits independent investigation by the judge, which includes electronic investigation.  Think about all the things we tell jurors not to do, including  googling anything about a case.   (If you are a member of the ABA Judicial Division, there’s a very nice TED talk on this topic – it’s only about 7 minutes long and you can access it by logging into on the Judicial Division home page.)

Finally, 2.9 requires the judge to make reasonable efforts to ensure this rule is not violated by court staff.

In this particular situation, the Standing Committee suggests that there are good reasons to allow some exceptions to the ex parte communication rule – a judge who is supposed to be monitoring guardianships should be able to receive and respond in some way to complaints of mistreatment –  but there are no legal provisions allowing such communications so the judge is stuck until the legislature fixes it.

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