Do California lawyers participating on a bar-association listserv that also includes judges risk improper ex parte contacts, and what should they avoid posting?

Plain-English summary

The opinion analyzes a bar-section listserv whose membership includes practicing lawyers and judges. In the hypothetical, a lawyer posts an inquiry seeking an accountant expert; a second member recommends a CPA with credentials; a third sharply criticizes the same CPA; a judge on the listserv recognizes the CPA as scheduled to testify in the judge's case the following week and posts a warning. The committee asks whether the lawyers' posts violate former Rule 5-300 and what the judge should do.

The committee analyzes former Rule 5-300(B)(5), which prohibits direct or indirect communications with a judge on the merits of a pending matter without other counsel's presence, consent, or notice. The rule reaches only communications "on the merits" of a "pending matter." A listserv inquiry seeking an expert witness, or a comment on an expert's competence, lacks the specific intent to communicate with any particular judge and does not address the merits of a pending case directly, so the committee concludes the inadvertent reception by a judge would not by itself trigger a violation. The committee adds, however, that California's State Bar discipline cases treat ex parte rules as not requiring bad faith or knowledge of the rule, so lawyers must remain cautious.

The committee separately discusses judges' independent duties under Canons 2A, 4, 4B, and 6D of the California Code of Judicial Ethics. Judges should ignore information about pending matters received outside the record, may participate in bar-association activities subject to caution, and should expect to delete listserv messages without reading them when the listserv connects to litigants who may appear before the judge. The opinion treats listservs as public forums, even where access is restricted to bar members ("closed" listservs), and analogizes them to letters to the editor.

The committee extends the discussion to lawyers who act as temporary judges, judges pro tem, court-appointed arbitrators, and neutral arbitrators (under former Rule 1-710 and CCP section 1281.85), who must avoid ex parte contacts as scrupulously as sitting judges. The committee notes that lawyers have no ethical duty to encrypt email, citing ABA Formal Opinion 99-413 and OCBA Formal Opinion 97-002.

In practice

The opinion holds that, under former California Rule 5-300 as it stood in 2005, a lawyer who posts on a bar-association listserv that includes judges does not commit an ex parte violation by an inadvertent post unless the post addresses the merits of a pending matter in which a judge on the list is presiding. The committee directs lawyers to refrain from including any content identifiable to a particular case or controversy in any listserv post and to remain mindful of confidentiality and work-product implications when discussing experts.

California's professional-conduct rules were revised effective November 1, 2018; former Rule 5-300 corresponds substantially to current Rule 3.5 (impartiality and decorum of the tribunal). The opinion's reasoning has not been re-examined under the new rule numbering by the committee.

Common questions

Q: Does posting to a bar listserv that includes judges count as ex parte contact under California's rules?

A: Per the opinion, an inadvertent post that does not address the merits of a pending matter is not by itself an ex parte violation under former Rule 5-300. The rule requires the communication to be "on the merits" of a "pending matter."

Q: Can a lawyer ask for an expert recommendation on a listserv where judges participate?

A: Per the opinion, yes, with caution. An inquiry seeking expert credentials, or a response recommending or commenting on an expert, generally would not amount to an ex parte communication on the merits. The committee directs lawyers to avoid content tying the inquiry to a specific case or controversy.

Q: What should a judge do who reads a listserv post relating to a pending case?

A: Per the opinion, the judge should ignore rather than respond to information mistakenly received about a pending matter, applying the same Canon 2A standard as for hallway or media exposure. Acknowledging or responding to the post on the listserv would itself create the appearance of impropriety.

Q: Do these limits apply to closed listservs limited to bar members?

A: Per the opinion, yes. The committee treats both open and closed listservs as public forums for ethics purposes, because the lawyer still cannot control who reads the post or how recipients react.

Q: What about lawyers serving as private judges or arbitrators?

A: Per the opinion, lawyers acting as temporary judges, judges pro tem, court-appointed arbitrators, or neutral arbitrators under CCP section 1281.85 must avoid ex parte communications as scrupulously as sitting judges. Former Rule 1-710 applies relevant portions of the Code of Judicial Ethics to attorneys acting in a judicial capacity.

Q: Must a lawyer encrypt confidential email?

A: Per the opinion, no. The committee cites ABA Formal Opinion 99-413 and Orange County Bar Formal Opinion 97-002, concluding that unencrypted email affords a reasonable expectation of privacy. The committee notes encryption is encouraged but not required.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 5-300 (ex parte communications with judges and judicial officers), former Rule 1-710 (lawyers acting in a judicial capacity), and Bus. & Prof. Code section 6068(e) (duty of confidentiality). It draws on Canons 2A, 4, 4B, and 6D of the California Code of Judicial Ethics, ABA Annotated Model Rule 3.5, and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration. The committee distinguishes ex parte rules for judges from administrative law judges (Zaheri v. New Motor Vehicle Board, 55 Cal.App.4th 1305 (1997)).

Citations and references

Rules of Professional Conduct:

• Former California Rule 5-300 (ex parte communications with judges)
• Former California Rule 1-710 (lawyer acting in judicial capacity)
• ABA Annotated Model Rule 3.5

Statutes:

• Bus. & Prof. Code section 5499.30 (referral of potential clients)
• Bus. & Prof. Code section 6068 (lawyer duties)
• Bus. & Prof. Code section 6158, 6158.3 (electronic-media advertising)
• Code of Civil Procedure section 1281.85 (arbitrator ethics)
• Code of Civil Procedure section 2018 (work product)
• Evidence Code section 952 (privileged communication)
• 18 U.S.C. section 2517 (federal wiretap statute)

Judicial Ethics:

• California Code of Judicial Ethics, Canons 2A, 4, 4B, 6D

Cases:

• Bell v. Staacke, 159 Cal. 193 (Cal. 1911), letter to opposing counsel as admission
• Durbin v. State Bar, 23 Cal.3d 461 (Cal. 1979), willfulness without bad faith
• Edwards v. State Bar, 52 Cal.3d 28 (Cal. 1990), willfulness standard
• Fellows v. Superior Court, 108 Cal.App.3d 55 (1980), attorney holds work product
• Hamilton v. State Bar, 23 Cal.3d 868 (Cal. 1979), willfulness without rule knowledge
• In re Jonathan S., 88 Cal.App.3d 468 (1979), ex parte contacts undermine confidence
• In re Jordan, 7 Cal.3d 930 (Cal. 1972), confidentiality as public policy
• Izazaga v. Superior Court, 54 Cal.3d 356 (Cal. 1991), work product privilege
• King v. State Bar, 52 Cal.3d 307 (Cal. 1990), willfulness standard
• McKesson HBOC, Inc. v. Superior Court, 115 Cal.App.4th 1229 (2004), work-product confidentiality
• McKnight v. State Bar, 53 Cal.3d 1025 (Cal. 1991), section 6108 violation
• U.S. v. Councilman (1st Cir. 2005), Electronic Communications Privacy Act
• Wilbanks v. Wolk, 121 Cal.App.4th 883 (2004), web statements as public-forum
• Zaheri v. New Motor Vehicle Board, 55 Cal.App.4th 1305 (1997), ALJ not "judicial officer" under Rule 5-300 but analogous standard applied

Other opinions cited:

• ABA Formal Opinion 99-413: encryption not required for email
• Orange County Bar Formal Opinion 97-002: encryption encouraged but not required

See also

• LACBA Opinion 529: Social Media Confidentiality and Work Product

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2010589