May a lawyer work with a judge on a law-related education program while the lawyer or the lawyer's firm has cases pending before that judge?

Plain-English summary

A lawyer working with the Arizona Bar Foundation's Center for Law-Related Education, which often pairs judges and lawyers in programs, was concerned that cases from the lawyer's firm might be assigned to judges he wanted to work with on those programs. He asked whether he could communicate with a judge about law-related education while he or his firm had cases pending before that judge.

The committee held that the only ex parte communications ER 3.5 forbids are those concerning the pending or impending proceedings before the court. Communications on matters wholly unrelated to litigation before the judge are not ex parte communications; if they were, judges could not converse with lawyers socially or through professional associations or bar committees. The committee distinguished its prior Opinions 87-2 and 87-17, which barred ex parte contact about a pending case (whether on the merits or merely procedural), and declined to extend that reasoning to communications unrelated to any pending or impending matter.

The committee observed that the working relationship between a judge and a lawyer through such programs raises judicial-ethics questions of appearance and disqualification rather than ex parte communication. A judge who developed a close friendship through the work might have to disclose it to opposing counsel if his impartiality might reasonably be questioned under Judicial Canon 3, or disclose unrelated contacts with opposing counsel to avoid the appearance of impropriety under Judicial Canon 2.

Currency note

This opinion was issued in 1990, 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 Treat this page as historical context, not current guidance.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: Is talking to a judge about a bar or education program an improper ex parte contact?

A: No. The committee concluded that ER 3.5 forbids ex parte communications only about the pending or impending proceedings before the court, so contacts on wholly unrelated matters like law-related education are not prohibited.

Q: Does it matter that the lawyer's firm has cases before that judge?

A: Not for the ex parte question. The committee held the unrelated nature of the communication, not the existence of pending cases, controls; otherwise judges could not interact with lawyers through associations or committees at all.

Q: Are there any ethical concerns from the lawyer-judge working relationship?

A: Yes, but on the judicial side. The committee noted the relationship raises appearance-of-fairness and disqualification questions under Judicial Canons 2 and 3, which may require the judge to disclose the relationship to opposing counsel.

Background and rules framework

The opinion interprets Arizona ER 3.5 (Model Rule 3.5, impartiality and decorum of the tribunal, specifically the bar on ex parte communication with a judge except as permitted by law) and discusses the Arizona Code of Judicial Conduct, Canon 2 (avoiding the appearance of impropriety) and Canon 3 (impartial performance of duties, including disclosure and disqualification). It builds on the committee's Opinions 87-2 and 87-17.

Citations and references

Rules of Professional Conduct:

• MR 3.5 / ER 3.5 (impartiality and decorum of the tribunal; ex parte communication)

Code of Judicial Conduct:

• Canon 2 (avoiding impropriety and its appearance)
• Canon 3 (impartial and diligent performance; disclosure and disqualification)

Other opinions cited:

• Arizona Opinion No. 87-2 (1987): ex parte contact about a pending case is barred even on procedural matters
• Arizona Opinion No. 87-17 (1987): same principle applied to a pending case

See also

• AZ Ethics Op. 90-16: Delaying Entry of Judgment
• AZ Ethics Op. 87-13: Professional Independence and Conflicts

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=615

Original opinion text

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

12/1990

Ethically proper for attorney working with Arizona Center for Law-Related Education to communicate with judicial officer on matters wholly unrelated to litigation matters before the court. Such communications are not ex parte contacts.

FACTS

The inquiring lawyer has been working with the Arizona Bar Foundation's Arizona Center for Law-Related Education regarding development and expansion of law-related education in the state. Law-related education programs often team judges and lawyers together in programs.

Cases from the inquiring lawyer's law firm are assigned to judges with whom the inquiring lawyer would like to work on law-related education programs. The situation may also arise where one of the inquiring attorney's cases is assigned to a judge with whom the attorney is working on a project.

QUESTION

May an attorney, with ethical propriety, communicate with a judge regarding law-related education programs at a time when the attorney (or a member of the attorney's law firm) has cases pending before the judge?

ETHICAL RULES INVOLVED

ER 3.5. Impartiality and Decorum of the Tribunal

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or an official of a tribunal by means prohibited by law;

(b) communicate ex parte with such a person except as permitted by law; or

CODE OF JUDICIAL CONDUCT PROVISIONS INVOLVED

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities

B. A judge should not allow his….social, or other relationships to influence his judicial conduct or judgment…..nor should he convey or permit others to convey the impression that they are in a special position to influence him….

Canon 3. A Judge Should Perform the Duties of His Office Impartially and Diligently

A. Adjudicative Responsibilities.

(4) A judge should accord to every person who is legally interested in a proceeding, or his lawyer; full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte applications concerning a pending or impending proceeding....

(See 17A A.R.S. Rules of the Supreme Court, Rule 81, Code of Judicial Conduct, at pp. 508-510.)

RELEVANT PRIOR ARIZONA OPINIONS

Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987).

OPINION

The inquiring attorney's basic concern is that communication with a judicial officer about a law-related education program may be perceived as an ex parte communication under ER 3.5 This committee, however, believes it is clear that the only ex parte communications forbidden by ER 3.5 are those concerning the pending or impending proceedings before the court. Communications with a judicial officer on matters wholly unrelated to litigation matters before the court are not ex parte communications. If they were, judges would, as a practical matter, be precluded from conversing with any lawyers, either socially or through professional associations or bar committees.

This view is consistent with our prior opinions, wherein we have determined that ER 3.5(b ) prohibits an attorney from communicating ex parte with a judge concerning a case pending before the judge, whether the subject of the communication concerns the merits of the case or merely a procedural or ministerial matter. See our Opinions Nos. 87-2 (January 20, 1987) and 87-17 (July 27, 1987). This committee is unwilling to extend the reasoning of those opinions to communications unrelated to any pending or impending matter before the judge.

The working relationship that may develop between a judge and an attorney through work on law-related education or, for that matter, on bar committees, raises issues which are more akin to those in the area of judicial ethics regarding the appearance of fairness and the need for disqualification, rather than ex parte communication. For example, a judge and an attorney may develop a close friendship through working together on law-related education programs. The judge may have to consider disclosing this relationship to opposing counsel in litigation if the judge thought that, because of such a relationship, his or her impartiality might reasonably be questioned under Judicial Canon 3. Moreover, under certain circumstances, a judge may have to consider disclosing contacts with opposing counsel on unrelated matters, such as law-related education programs or bar committee work, simply to avoid the appearance of impropriety as required by Judicial Canon 2.

©State Bar of Arizona 1990