Can a judge discuss a pending case with another judge, including over a judicial listserv, for guidance?

Plain-English summary

The opinion addressed when a judge may discuss a pending case with another judge, whether one-on-one or through a listserv. The Committee started from MCJC 3(A)(4)(c), which permits a judge to consult with court personnel who aid the judge's adjudicative responsibilities or with other judges, and from JI-84, which generally allowed a judge to consult judicial colleagues and law clerks before issuing a decision.

The Committee looked to ABA Model Rule 2.9(A)(3), which permits a judge to consult court staff or another judge so long as the judge makes reasonable efforts to avoid receiving factual information that is not part of the record and does not abrogate the responsibility to personally decide the matter. Although the Michigan Code does not spell out these conditions, the Committee found them implied by MCJC 1 (an independent and honorable judiciary) and MCJC 3(A)(1) (the judge should be unswayed by partisan interests, public clamor, or fear of criticism), which together require the trier of fact to individually decide the case independent of others' opinions. The ex parte provisions of MCJC 3(A)(4)(a), (b), and (e) likewise work to ensure the judge does not obtain off-record factual information.

The Committee concluded that the judge should first ensure the consulting judge has no personal relationship to the parties, attorneys, or matter. With a listserv, where individual screening is impossible, the adjudicating judge should pose the question in general terms so the case cannot be identified. In every method, the consulting judge should avoid supplying factual information not in the record, and the adjudicating judge must make an independent decision.

In practice

The opinion holds that, under the Michigan Code of Judicial Conduct as it stood at the time, a judge may seek another judge's guidance on a pending matter, including through a judicial listserv, within stated limits. Per the opinion, the consulted judge should have no relationship to the parties, attorneys, or matter; for a listserv, the inquiry should be framed so the case is not identifiable; no factual information outside the record should pass between the judges; and the adjudicating judge must personally make the decision.

Common questions

Q: Can a judge ask another judge for help thinking through a pending case?

A: Per the opinion, yes. The Committee concluded a judge may consult another judge to seek guidance in carrying out adjudicative responsibilities, so long as no off-record factual information is received and the judge decides the matter independently.

Q: Is using a judicial listserv to discuss a pending case allowed?

A: The opinion concluded a judge may use a listserv, but because individual consulting judges cannot be screened for relationships to the case, the judge should pose the situation in general terms so the case cannot be identified.

Q: What are the limits on this kind of consultation?

A: Per the opinion, the consulting judge should avoid providing factual information not part of the record, the consulted judge should have no relationship to the parties, attorneys, or matter, and the adjudicating judge must make an independent decision.

Background and rules framework

The opinion interprets the Michigan Code of Judicial Conduct: MCJC 1 (an independent and honorable judiciary), MCJC 3(A)(1) (faithful, independent adjudication), and MCJC 3(A)(4)(a), (b), (c), and (e) (ex parte communications, consultation with experts and other judges). It reads those provisions in light of ABA Model Rule 2.9(A)(3) and the Committee's earlier JI-84.

Citations and references

Rules of Judicial Conduct:

• MCJC 1 (independent and honorable judiciary)
• MCJC 3(A)(1) (independent adjudication)
• MCJC 3(A)(4)(a), (b), (c), (e) (ex parte communications; consulting other judges)

Other opinions and authorities cited:

• JI-84 (judge may consult judicial colleagues and law clerks before deciding)
• ABA Model Rule 2.9(A)(3) (consultation without off-record facts; personal decision)

See also

• Mich Ethics Op. RI-243: No Communications With a Judge on the Merits
• Mich Ethics Op. JI-26: A Judge's Duty to Prevent Unauthorized Practice
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1255&Type=6

Original opinion text

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

JI-149

March 30, 2020

SYLLABUS

A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge.

References: MCJC 1, MCJC 3(A)(1); MCJC 3(A)(4)(a); MCJC 3(A)(4)(b); MCJC 3(A)(4)(c); MCJC 3(A)(4)(e); JI-84; ABA Model Rule 2.9(A)(3).

TEXT

New attorneys frequently work with a seasoned attorney on a case or have a mentor to help provide substantive guidance in the performance of their job. Even seasoned attorneys find it beneficial to work collaboratively on unique and complex litigation. Similarly, new as well as experienced judges can perform their adjudicative responsibilities better by consulting, either individually or by means of a listserv, with another judge about a pending case. This opinion addresses under what circumstances a judge can discuss a pending case with another judge.

A judge is required to maintain professional competence and be faithful to the law. MCJC 3(A)(1). Additionally, MCJC 3(A)(4)(c) permits a judge to "consult with court personnel whose function it is to aid the judge in carrying out the judge’s adjudicative responsibilities or with other judges." JI-84 mentions generally that a judge may consult with judicial colleagues and law clerks before issuing a decision.

The ABA Model Rule expressly states the circumstances under which communication between a judge and court staff or another judge is permissible so long as the judge "makes reasonable efforts to avoid receiving factual information that is not part of the record, and does not abrogate the responsibility personally to decide the matter." ABA Model Rule 2.9(A)(3). Although the Michigan Code of Judicial Conduct (MCJC) does not lay out specific circumstances, they are implied through other provisions of the Code. For example, the first full sentence of the MCJC states, "An independent and honorable judiciary is indispensable to justice in our society." MCJC 1. Canon 3(A)(1) makes clear "[a] judge should be unswayed by partisan interests, public clamor, or fear of criticism." Inherent in these and other provisions of the MCJC is the understanding that the jurist serving as the trier of fact in a case must individually decide the case, independent of the opinion of others.

Additionally, the MCJC permits ex parte communications for scheduling, administrative, and emergency non-substantive matters under certain conditions, prohibits the judge from initiating or considering any ex parte communications unless expressly authorized by law to do so, and permits a judge to obtain advice from a disinterested expert on the applicable law if the judge follows a specific protocol. MCJC 3(A)(4)(a), MCJC 3(A)(4)(e), and MCJC 3(A)(4)(b). All of these provisions ensure that the judge does not obtain factual information about the case at hand outside of the court record. The code would not permit such a transfer of information between two judges discussing a pending matter.

There are multiple scenarios where a jurist may find it useful to discuss the substance of a pending matter with another jurist. A person may find it helpful to review their logic or legal reasoning with another individual to ensure that they are on the right track, or to evaluate if there are flaws in their reasoning. At other times, there are occasions that a situation is so unique that a jurist may seek another judge who has come across a similar situation to help provide ideas about a possible resolution. Sometimes it is simply helpful to just talk aloud to another individual while working out a problem with a case or even the parties or attorneys related to a case. Just as attorneys are assisted in their legal training through mentoring, jurists may find helpful the experience of another judge when trying to resolve a matter.

When a judge believes consulting with another judge would aid them in fulfilling their responsibility to adjudicate a matter with the utmost competence, the judge should first ensure that the consulting judge has no personal relationship to the parties, the attorneys, or to the matter itself before discussing the case. In the case of listservs, the adjudicating judge will be unable to filter out consulting judges who, if consulted individually, could be effectively screened for such a relationship. Therefore, the adjudicating jurist should ensure that the situation is posed in general terms such that the case cannot be identified. Regardless of the consultation method, the consulting judge should avoid providing any factual information that may influence the adjudicating judge’s case that is not part of the adjudicating judge’s court record. Finally, the adjudicating judge must make an independent decision about the matter before the court.

CONCLUSION

A judge may consult with another judge, individually or by way of listservs, to seek guidance in carrying out the judge’s adjudicative responsibilities so long as the judge does not receive factual information that is not part of the record and the judge makes an independent decision in the matter before the judge.