Can a prosecutor prepare a judgment entry at a judge's direction and revise it without involving defense counsel?

Plain-English summary

A prosecutor asked whether he or she may prepare a judgment entry at a judge's request, and whether the prosecutor and the court may then exchange edits without involving defense counsel. The Board concluded that preparing the entry is permissible: Sup.R. 7 allows counsel to prepare and present the judgment entry required by Civ.R. 58 and Crim.R. 32, and courts commonly ask the prosecutor to draft the entry after announcing a decision.

The limit is ex parte communication. Prof.Cond.R. 3.5(a)(3) bars a lawyer from ex parte communication with a judicial officer on the merits, and Jud.Cond.R. 2.9(A) bars judges from such communications, but Jud.Cond.R. 2.9(A)(1) permits communications for scheduling, administrative, or emergency purposes that do not address substantive matters. A judge's direction to prepare an entry is a permissible administrative communication, but opposing counsel should be made aware of the request. The Board used Disciplinary Counsel v. Stuard, where a judge had the prosecutor draft and repeatedly revise a death-penalty sentencing opinion without defense counsel's knowledge, as the example of impermissible substantive ex parte collaboration; both the judge and the prosecutor were disciplined. The Board therefore advised that if a court asks the prosecutor to make substantive changes to an entry, the prosecutor should decline unless opposing counsel is included.

The Board added that regular improper ex parte communication to finalize entries may also be conduct prejudicial to the administration of justice under Prof.Cond.R. 8.4(d), and that the analysis does not change when the direction comes from court staff rather than the judge, because staff cannot act contrary to the judge's obligations (Jud.Cond.R. 2.12(A)). The Board concluded the directive to prepare the entry should be placed on the record in the presence of opposing counsel, and substantive revisions should be made only with both parties' counsel included.

In practice

Under this opinion, a prosecutor may prepare a judgment entry at a court's direction, because Sup.R. 7 permits counsel to do so. Per the opinion, the prosecutor should not engage in subsequent communications with the court about substantive changes to the entry unless opposing counsel is included, because doing so risks an improper ex parte communication under Prof.Cond.R. 3.5 and may be conduct prejudicial to the administration of justice under Prof.Cond.R. 8.4(d). The opinion states the directive should be placed on the record with opposing counsel present, and that the same limits apply when the request comes from court staff.

Common questions

Q: Can a prosecutor draft a judgment entry for the judge?

A: The opinion concludes yes. Sup.R. 7 permits counsel to prepare and present the judgment entry, and courts commonly ask the prosecutor to do so after announcing a decision.

Q: Can the prosecutor and the court exchange edits to the entry without defense counsel?

A: Per the opinion, not on substantive matters. If the court asks for substantive changes, the prosecutor should decline unless opposing counsel is included, to avoid an improper ex parte communication under Prof.Cond.R. 3.5.

Q: Does it matter if the request to revise comes from court staff instead of the judge?

A: No. The opinion concludes the analysis is the same, because court staff subject to the judge's direction cannot act contrary to the judge's obligations under the Code of Judicial Conduct (Jud.Cond.R. 2.12(A)).

Background and rules framework

The opinion applies Prof.Cond.R. 3.5 (impartiality and decorum; ex parte communication; Model Rule 3.5) and Prof.Cond.R. 8.4(d) (conduct prejudicial to the administration of justice; Model Rule 8.4), read together with Jud.Cond.R. 2.9 (ex parte communications) and 2.12 (responsibility for staff), and the court rules permitting counsel-prepared entries (Sup.R. 7; Civ.R. 58; Crim.R. 32).

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 3.5(a)(3) (Model Rule 3.5; ex parte communication)
• Ohio Prof.Cond.R. 8.4(d) (Model Rule 8.4; conduct prejudicial to the administration of justice)
• Ohio Jud.Cond.R. 2.9(A), 2.9(A)(1); 2.12(A)

Court rules:

• Sup.R. 7; Civ.R. 58; Crim.R. 32 (preparation of judgment entries)

Cases:

• Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29, 2009-Ohio-261, ex parte preparation of a sentencing opinion
• State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, related criminal appeal
• Disciplinary Counsel v. Thomas, 2020-Ohio-5582; In re Disqualification of Spitler, 142 Ohio St.3d 76, 2014-Ohio-5875, communications with court staff

Other opinions cited:

• Ohio Adv. Op. 1999-08 (duty to notify court of clerical error in a prosecutor-prepared entry)

See also

• Ohio BPC Op. 1992-007: Ex Parte Communication With a Government Party
• Ohio BPC Op. 2022-001: Imputation of a Part-Time Assistant Prosecutor's Conflict

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2022/12/Adv.-Op.-2022-12-Final.pdf

Original opinion text

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

OPINION 2022-12
Issued December 9, 2022

                  Prosecutor Preparation of Judgment Entry

SYLLABUS: A prosecutor may prepare a judgment entry at the direction of a judge. A
prosecutor should not engage in subsequent communications with a court about changes
or edits to a judgment entry that concern substantive matters or issues on the merits
unless opposing counsel is included in the communications.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.
 65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

PATRICIA A. WISE RICHARD A. DOVE
CHAIR DIRECTOR
HON. D. CHRIS COOK D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

                                   OPINION 2022-12
                                Issued December 9, 2022

                     Prosecutor Preparation of Judgment Entry

SYLLABUS: A prosecutor may prepare a judgment entry at the direction of a judge. A
prosecutor should not engage in subsequent communications with a court about changes
or edits to a judgment entry that concern substantive matters or issues on the merits
unless opposing counsel is included in the communications.

APPLICABLE RULES: Prof.Cond.R. 3.5, 8.4(d), Jud.Cond.R. 2.9, 2.12

QUESTIONS PRESENTED:

   1) Whether a prosecuting attorney may prepare a judgment entry at the request
       of a judge.

   2) Whether a prosecutor and/or his or her staff may engage in subsequent
       communications with a judge and/or his or her staff to prepare the entry
       without communication with or the input of opposing counsel.

OPINION:

   The preparation of judgment entries by counsel at the direction of a judge is

permissible under court rule. Supreme Court Sup. R. 7 states that the judgment entry
required in Civ. R. 58 and Crim. R. 32 may be prepared and presented to the court by
counsel. In criminal cases, after announcing its decision, some courts routinely request
the prosecutor to prepare the judgment entry. See Adv. Op. 1999-08 (defense counsel has
a duty to notify court of clerical error in judgment entry prepared by prosecutor.)
Op. 2022-12 2

Ex Parte Communications

   Ex parte communications by and between counsel and a judge about substantive

matters or issues on the merits is prohibited by rules of conduct. See Prof.Cond.R. 3.5(a)(3)
(ex parte communication prohibited with judicial officer on merits of the case);
Jud.Cond.R. 2.9(A) (a judge shall not initiate, receive, or permit ex parte
communications.) However, Jud.Cond.R. 2.9(A)(1) permits ex parte communications by
a court “for scheduling, administrative, or emergency purposes that do not address
substantive matters or issues on the merits” when the judge reasonably believes no party
will gain an advantage as a result. Consequently, after a decision, decree, or verdict, a
judge’s direction to counsel for one party to prepare a judgment entry, as contemplated
by Sup.R. 7, is a permissible communication regarding an administrative matter in a case.
However, opposing counsel should be made aware of the request and, in complying with
a judge’s direction, counsel must avoid violating the prohibition against improper ex
parte communications.

   The Supreme Court’s decision in Disciplinary Counsel v. Stuard, 121 Ohio St.3d 29,

2009-Ohio-261, provides an example of an improper ex parte communication between
the court and counsel in the preparation of a sentencing opinion. Between the penalty-
phase hearing and the sentencing hearing, the judge asked the prosecutor to prepare the
opinion required by statute when sentencing the defendant to death. The prosecutor
drafted and submitted the opinion at the judge’s direction based on notes the judge gave
to the prosecutor. On multiple occasions, the court directed the prosecutor to make
subsequent and substantive changes and edits to the sentencing opinion. At no time was
defense counsel made aware that the court had assigned the drafting of the opinion to
the prosecutor or consulted during the exchange of the opinion between the court and
the prosecutor. Defense counsel subsequently challenged the process as an impermissible
collaboration between the court and the prosecutor and an improper ex parte
communication. In the disciplinary matter, the Supreme Court found that both the judge
and prosecutor had engaged in ex parte communications in violation of the former Code
of Professional Responsibility and the Code of Judicial Conduct, and both were
disciplined for the violations. On appeal of the criminal conviction, the Supreme Court
observed that the ex parte communications between the judge and prosecution in
preparing the sentencing opinion was “wholly inconsistent” with the ethical rules. State
Op. 2022-12 3

v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665 ¶ 161. On remand, the judge was ordered
to prepare a new sentencing opinion.

   The potential for improper ex parte communications exists in the preparation of a

judgment when a court requests a prosecutor to make substantive edits or changes to an
entry that the prosecutor was initially and properly tasked with preparing. If a prosecutor
is directed to prepare an entry by a court and subsequent edits or changes are requested
of the prosecutor by the court that involve substantive matters or issues on the merits,
the Board recommends that the prosecutor decline to make the revisions, based on his or
her ethical obligations under Prof.Cond.R. 3.5, unless opposing counsel is included in the
communications.

Conduct prejudicial to the administration of justice

   A prosecutor’s regular engagement in improper ex parte communications with a

court to prepare and complete a judgment entry may also implicate the prohibition
against engaging in conduct prejudicial to the administration of justice. Prof.Cond.R.
8.4(d); Disciplinary Counsel v. Stuard, supra, at ¶10. The finalizing of a judgment entry at
the court’s direction by making edits or changes to the document concerning substantive
matters without including opposing counsel in the process, may interfere with due
process and damage the public’s perception of the justice system as a whole.

Ex parte communications with court staff

   The above analysis does not change if the direction to a prosecutor to make

subsequent changes or edits to a judgment entry is received from court staff rather than
the judge. A lawyer communicating with court staff about substantive matters or issues
on the merits pending before the court is viewed as an improper ex parte communication.
See Disciplinary Counsel v. Thomas, 2020-Ohio-5582 (lawyer disciplined for sending
substantive letter regarding facts in a pending matter to court’s staff attorney.) Moreover,
court staff subject to a judge’s direction or control cannot act in a manner contrary to a
judge’s obligations under the Code of Judicial Conduct, including the prohibition against
ex parte communications. Jud.Cond.R. 2.12(A). See also, In re Disqualification of Spitler, 142
Ohio St.3d 76, 2014-Ohio-5875 (allegation of impropriety and ex parte communications
when judge’s staff directed counsel for one party to prepare an entry.)
Op. 2022-12 4

  The Board concludes that a prosecutor is not ethically prohibited from preparing

a judgment entry at the direction of a court. The directive should be placed on the record
in the presence of opposing counsel, and revisions to the entry concerning substantive
matters or issues on the merits as directed by the court should be made only when counsel
for both parties are included in the process. The prosecutor must address with both the
court and defense counsel any questions or concerns about the manner or method in
which the entry is to be prepared.