Can a lawyer communicate ex parte with an administrative law judge about a pending case?

Plain-English summary

A lawyer asked whether it was ethical to have ex parte communications with an administrative law judge in a workers' compensation case, both where the lawyer initiated the contact and where the judge did.

The opinion concluded that under ER 3.5(b) a lawyer may not communicate ex parte with a judge or tribunal official except as permitted by law. It added that ER 8.4(d) makes conduct prejudicial to the administration of justice professional misconduct, and ER 8.4(f) makes it misconduct for a lawyer to knowingly assist a judge in violating the rules of judicial conduct. The committee noted that Canon 3(A)(4) of the Code of Judicial Conduct prohibits a judge from initiating or considering ex parte communications about a pending proceeding, so a lawyer who assists a judge in such communications would violate ER 8.4.

The opinion pointed to McElhanon v. Hing, in which the Arizona Supreme Court disapproved of judge-initiated ex parte communications during trial and stated that the lawyer, though perhaps reluctant to refuse the judge, was ethically bound to do so. It also observed that ER 3.5 differs from the former DR 7-110(B): the old rule addressed ex parte communications on the merits, while ER 3.5 draws no distinction between procedural and merits communications.

The opinion concluded that, except in situations where ex parte communication is permitted by law, it would be unethical for a lawyer to communicate ex parte with an administrative law judge about a pending case. The lawyer may not initiate any such communication and should ethically refuse to participate in one the administrative law judge initiates.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer call an administrative law judge about a pending case without the other side?

A: No. The opinion concluded that, except where permitted by law, ER 3.5 bars a lawyer from initiating ex parte communication with an administrative law judge about a pending case.

Q: What if the judge starts the ex parte communication?

A: The opinion concluded the lawyer should ethically refuse to participate, relying on ER 3.5, ER 8.4, and the Supreme Court's statement in McElhanon v. Hing that a lawyer is bound to refuse even a reluctant judge-initiated contact.

Q: Does ER 3.5 reach procedural as well as merits communications?

A: Yes. The opinion noted that, unlike the former DR 7-110(B), ER 3.5 draws no distinction between procedural communications and communications on the merits.

Background and rules framework

The opinion applied ER 3.5 (Model Rule 3.5), which bars ex parte communication with a judge or tribunal official except as permitted by law, and ER 8.4 (Model Rule 8.4), which defines professional misconduct, including conduct prejudicial to the administration of justice (ER 8.4(d)) and knowingly assisting a judge in violating judicial-conduct rules (ER 8.4(f)). It referenced Canon 3(A)(4) of the Code of Judicial Conduct and McElhanon v. Hing.

Citations and references

Rules of Professional Conduct:

• ER 3.5 / Model Rule 3.5 (impartiality and decorum of the tribunal; ex parte contact)
• ER 8.4 / Model Rule 8.4 (misconduct)

Cases:

• McElhanon v. Hing, 728 P.2d 273 (Ariz. 1986), disapproval of judge-initiated ex parte communication

See also

• AZ Ethics Op. 97-07: Witness Compensation and Fairness to the Opposing Party
• AZ Ethics Op. 05-05: Client Perjury and Candor to the Tribunal
• AZ Ethics Op. 86-02: Court-Appointed Counsel for a Juvenile

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=551

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

1/1987

Except in certain situations, it is not ethical to have ex parte communication with administrative law judge concerning a Case pending before that judge.

FACTS

The inquiring attorney desires to know the ethical propriety of ex parte communications with an administrative law judge in a worker 's compensation case, whether that communication is initiated by the lawyer or by the administrative law judge.

QUESTIONS

• May an attorney ethically initiate telephone communication on an ex parte basis with an administrative law judge concerning a patficular case which is pending before that judge?
• May an attorney ethically communicate on an ex parte basis with an administrative law judge regarding a particular case which is pending before that judge if the judge initiates the communication?

ETHICAL RULES INVOLVED

ER 3.5. Impartiality and Decorum of the Tribunal.

ER 8.4. Misconduct.

OPINION

Under the provisions of ER 3.5(b), a lawyer way not communicate ex parte with a judge or an official of a tribunal except as permitted by law. In addition, the provisions of ER 8.4(d) define professional misconduct to include conduct that is prejudicial to the administration of justice. Finally, ER 8.4(f) states that it is professional misconduct for a lawyer to “knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct ...." While it is not within the scope of this opinion to comment on judicial ethics, it is noted that the provisions of Rule 81, Canon 3(A)(4) of the Code of Judicial Conduct, 17A A.R.S., prohibits a judge from initiating or considering ex parte, applications concerning a pending or impending proceeding. A lawyer who assists a judge in initiating or engaging in ex parte communications would thus be in violation of ER 8.4.

The recent case of McElhanon v. Hing, _Ariz. _ , 728 P.2d 273 (1986), is of particular interest in this situation. In McElhanon, the Arizona Supreme Court specifically disapproved of ex parte communications between a judge and a lawyer during a trial when such communications were initiated by the judge. The Court noted that the lawyer in that case, while perhaps reluctant to refuse to communicate with the judge on an ex parte basis when requested to do so by the judge, nevertheless was ethically bound to so refuse. (72B P.2d at 279-280)

There is a significant difference between the provisions of ER 3.5 and the provisions of former DR 7-110(B) which also addressed the issue of ex parte communications. In the former rule, a lawyer was admonished concerning ex parte communications with a judge or an official before whom a proceeding was pending as to the merits of the cause (emphasis supplied). ER 3.5 prohibits ex parte communications (except as permitted by law) without any distinctions between procedural communications and communications on the merits of a case.

There are certain situations in which ex parte communications are permitted by law. Except as provided for in such situations, it would be unethical for an attorney to have ex parte communications with an administrative law judge concerning a case which is pending before that administrative law judge. An attorney may not initiate any such communications and ethically should refuse to participate in any such communications initiated by the administrative law judge.

© State Bar of Arizona 1987