Can a lawyer talk privately to the trial judge while the case is on review in a higher court?

Currency note

This opinion was issued in 1984, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 7-108(B) (ex parte communication with a judge on a pending contested matter), the subject now addressed by current Rule 3.5. 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 Treat this page as historical context, not current guidance.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, statute, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The inquiry arose after a trial court revoked probation and the defense petitioned a higher court for a writ of habeas corpus. Before the hearing on the order to show cause, the prosecutor discussed the petition's factual allegations with the trial judge, then submitted a declaration to the higher court reporting the trial judge's views. The defense attorney was neither present nor notified. The writ was granted and the matter returned to the trial judge.

The committee read former Rule 7-108(B), which bars a lawyer from communicating with or arguing to a judge, in the absence of opposing counsel, on the merits of a contested matter pending before that judge, except in open court. The committee concluded that a contested matter is "pending" before a trial judge while the matter or some aspect of it is under review by a higher court, if it may again come before the same trial judge (citing Code of Civil Procedure section 1049). It drew on Roberts v. Commission on Judicial Performance, where the California Supreme Court held a trial judge's ex parte communications about a matter under review were prejudicial to the administration of justice; although Roberts concerned judicial ethics, Rule 7-108(B) prohibits attorneys from similar conduct.

The committee grounded the prohibition in two duties: protecting the impartiality of the decision-making process (improper contacts erode the public confidence that is "the very cement by which the system holds together," quoting In re Jonathan S.) and fairness to opposing counsel (the ex parte rule is "a rule of fairness meant to insure that all interested sides will be heard," quoting Heavey v. State Bar). The committee added that even where a trial judge may have to serve as a witness during review of a matter the judge decided, the judge is never like other witnesses; the role as an impartial decision-maker means access to the judge as a witness is still controlled by Rule 7-108(B). A footnote distinguished People v. Laue, where an ex parte contact about resentencing after a final judgment did not concern a pending matter and so did not violate the rule.

Common questions

Q: Is it ever okay for a lawyer to contact the trial judge privately about a case on appeal?

A: The committee concluded that a lawyer may not communicate ex parte with the trial judge on the merits of a contested matter that is under review and may return to that judge, because the matter is still "pending" under former Rule 7-108(B).

Q: Why does it matter that the matter could come back to the same judge?

A: Per the opinion, a matter is "pending" before the trial judge while it (or an aspect of it) is being reviewed if it may again come before that same judge, so the protections of Rule 7-108(B) continue to apply.

Q: Does it change anything if the judge is needed as a witness in the review?

A: No. The committee concluded that a judge is never like other witnesses; the need to protect the judge's future impartiality means access to the judge as a witness is controlled by Rule 7-108(B), and the possibility of the judge being a witness does not justify ex parte contact.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 7-108(B), which provides that a lawyer "shall not directly or indirectly, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer, upon the merits of a contested matter pending before such judge or judicial officer, except in open court," and which does not apply to ex parte matters. The committee read "pending" with Code of Civil Procedure section 1049 and the judicial-ethics analysis in Roberts v. Commission on Judicial Performance. The subject corresponds today to the prohibition on improper ex parte communication with a judge (Model Rule 3.5).

Citations and references

Rules of Professional Conduct:

• Former California Rule 7-108(B) (ex parte communication with a judge on a pending contested matter)

Statutes:

• Code of Civil Procedure section 1049 (an action is pending until final determination on appeal)
• Penal Code section 1170 (resentencing; referenced in footnote)

Cases:

• Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739, ex parte communication during review prejudicial to the administration of justice
• In re Jonathan S. (1979) 88 Cal.App.3d 468, public confidence as "the very cement" of the system
• Heavey v. State Bar (1976) 17 Cal.3d 533, ex parte rule as a rule of fairness
• People v. Laue (1982) 130 Cal.App.3d 1055, contact about a final judgment not a pending matter

See also

• CA Ethics Op. 1985-85: Ex Parte Contact With a Workers' Comp Rehabilitation Consultant
• CA Ethics Op. 1983-74: Client Perjury in a Civil Bench Trial

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1984-78.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1984-78

ISSUE:

In the absence of adequate notice to opposing counsel, is it ethical for an attorney to communicate with a trial judge concerning the merits of a contested matter decided by the judge and then on review by a higher court?

DIGEST:

It is not ethical for an attorney to communicate ex parte with a trial judge on the merits of a contested matter decided by the judge and on review by a higher court if the matter may come again before the same trial judge. Such a matter is "pending" before the trial judge. Attorneys engaging in such conduct violate their duty to protect the impartiality of the decision-making process and their duty of fairness owed to opposing counsel.

AUTHORITIES INTERPRETED:

Rule 7-108(B) of the Rules of Professional Conduct of the State Bar of California.

INQUIRY

The inquiry received by the Committee concerns events which occurred after a trial court's decision to revoke probation. The defendant's attorney petitioned for a writ of habeas corpus in a higher court. Prior to the hearing on the order to show cause, the prosecuting attorney discussed the factual allegations in the petition with the trial court judge. The prosecuting attorney then submitted his declaration to the higher court indicating the views held by the trial court judge. The defense attorney was not present at the discussion with the trial judge and had received no notice of it. The writ was granted and the matter came back to the trial judge.

DISCUSSION

Rule 7-108(B) of the Rules of Professional Conduct of the State Bar reads:

"A member of the State Bar shall not directly or indirectly, in the absence of opposing counsel, communicate with or argue to a judge or judicial officer, upon the merits of a contested matter pending before such judge or judicial officer, except in open court; .... The rule shall not apply to ex parte matters."

It is the Committee's opinion that a contested matter is "pending" before a trial judge while the matter, or some aspect of it, is being reviewed by a higher court, if the matter, or aspect thereof, may again come before the same trial judge. (See Code Civ. Proc., 1049.) In Roberts v. Commission on Judicial Performance (1983) 33 Cal.3d 739 [661 P.2d 1064, 190 Cal.Rptr. 910], the California Supreme Court concluded that ex parte communications by a trial judge concerning the merits of a petition for mandate to review a criminal suppression order of the judge was prejudicial to the administration of justice. The suppression order was an aspect of the criminal matter which was before the trial judge.1 Although Roberts concerned judicial ethics, rule 7-108(B) prohibits attorneys, on their part, from engaging in similar conduct.

Attorneys have a duty to protect the impartiality of the decision-making process. Improper ex parte contacts erode public confidence in the fairness of the administration of justice. This public confidence is "the very cement by which the system holds together." (In re Jonathan S. (1979) 88 Cal.App.3d 468, 471 [151 Cal.Rptr. 810, 812].) Improper ex parte contacts also violate a duty of fairness owed to opposing counsel. They prevent opposing counsel from effectively performing' his role as an attorney. (Heavey v. State Bar (1976) 17 Cal.3d 533 [551 P.2d 1238, 131 Cal.Rptr. 406].) The ex parte rule is, in essence, "a rule of fairness meant to insure that all interested sides will be heard on an issue." (Heavey, supra, at p. 559.)

Although some review proceedings may require a trial judge to be a witness during the review of a matter decided by him, a judge is never like other witnesses. His role as an impartial decision-maker demands that his future impartiality be protected. Access to him as a witness is, therefore, controlled by rule 7-108(B). In Roberts v. Commission on Judicial Performance, supra, at p. 747, the California Supreme Court went so far as to say that a judge's ex parte communications with a real party in interest were improper, even though the Judge, himself, was a party respondent to the proceeding. If it is improper for a judge to communicate ex parte with the real party in interest even though he is also a party respondent, a similar communication by an attorney is certainly improper when the judge's role is solely that of a witness. The fact that the trial judge may be a witness in a review proceeding does not justify ex parte contacts.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 In People v. Laue (1982) 130 Cal.App.3d 1055, 1061 [182 Cal.Rptr. 99], which did not involve a matter pending before a higher court, the defendant had been sentenced following a guilty plea, and the judgment was final. The defense attorney thereafter had an ex parte communication with the judge, in which the attorney asked the court to initiate re-sentencing proceedings under Penal Code section 1170. The judge, after a hearing, reduced the sentence. The court found that the communication between the defense attorney and the judge was not concerning a pending matter and therefore rule 7-108(B) had not been violated.