Lately the news is buzzing with the issue of ex parte communications between a judge and a witness. For legal professionals, we understand the dangers ex parte communications can cause in any case, criminal or civil. Thus, we stand on guard to prevent or correct such violations.
Ex parte communication refers to any communication that happens between one party and a judge, without the presence or knowledge of the other party or parties involved in the case. It’s like having a conversation with the judge behind the other party or parties’ back(s). Ex parte communication basically means, without all relevant parties present.
Private conversations with a judge increase the likelihood of the party, witness, or judge being manipulated or coerced in one direction or another and possible favor being shown to the party having the private conversation with the judge. Ex parte communication opens the door to bias and prejudice. Thus, that type of communication is often restricted to ensure fairness in legal proceedings.
As many of you are aware, in recent news, an attorney who raised this very concern, via motion, of the particular Judge’s ex-parte communication with a witness without that defense attorney’s knowledge or presence during the communication, was the one who ended up being sanctioned. That attorney was sanctioned not for ex parte communication, but for not disclosing to the Judge how he learned about the Judge’s ex parte communications with the witness. The question remains, is how he found out relevant, or should all eyes be solely on why the Judge engaged in ex-parte communication? Per the ethics rules, it is the judge and/or the attorney who led the ex-parte discussions that should be investigated and sanctioned if necessary.
Generally, neither a judge nor attorney should directly communicate with a party or witness, without all parties being present or aware the conversation is taking place. When the Court gets it wrong, it is the duty of fellow officers of the court (judges, attorneys, clerks, etc) to stand up against injustice, call it out, and perform ethically. In some cases, the presence of ex-parte communication can cause the entire decision to be reviewed, thrown out, or reconsidered.
Imagine a divorce case where Sarah and John are disputing what is the best custody arrangement for their child. Sarah’s attorney, without informing John’s attorney, schedules a meeting with the judge overseeing the case to discuss certain aspects of the custody arrangement. During this meeting, Sarah’s attorney presents arguments and evidence favoring Sarah’s position, but John’s attorney is not present to counter these arguments or present opposing evidence. As a result, the judge receives information from Sarah’s side only, without the opportunity for John’s side to be heard. This constitutes ex parte communication because it involves a conversation between one party (Sarah’s attorney) and the judge without the involvement or knowledge of the other party (John’s attorney).
A courtroom is a battleground where two parties engage in legal strategy based on their evidence, arguments, and witnesses to persuade the judge or jury. Both parties start with a clean slate and equal opportunity to present and defend their argument. However, if one side is allowed to slip into the judge’s chambers for a private chat, without the other party’s awareness, it will undoubtedly affect the impartiality of a judge or witness. Such conversations can put an absent party at a severe disadvantage to rebut, defend, or take note of any information shared with the judge. In the world of law and justice, fairness is paramount. Every individual deserves a fair chance to present their case and have it heard impartially, without the increased opportunity for judges to be biased or manipulated. Ex- parte, “secret communications” undermines the very essence of justice and can have dire consequences.
When a Judge is assigned a case, that Judge should not speak to one party if all parties (including their attorneys) are not present. Nor should a judge speak to any witnesses without the knowledge or presence of all parties and/or their counsel, which includes calls, texts, emails, face to face conversation, direct or indirectly. Judges and attorneys are entrusted with the solemn duty of upholding justice. The very essence of the Constitution is the right to due process. For lawyers and judges the very essence of their legal practice is the sworn oath based on the ethical obligations. When one party sneaks in private discussions with a judge or court, there’s a risk of influencing decision-making in favor of that party. This compromises the impartiality and objectivity expected from judicial officers, and likely taints the outcome of the case. Typically, violating the rules of ethics can lead to legal sanctions, including overturning a court’s decision or disciplinary action against attorneys and judges involved. As guardians of justice, it’s incumbent upon legal practitioners and judicial authorities to shun this insidious practice and uphold the principles that form the bedrock of our legal system. Only then can we ensure that justice truly prevails for all.