Is A Letter To A Judge’s Staff Attorney An Ex Parte Communication?

The Ohio Supreme Court has publicly reprimanded an attorney for an ex parte communication with a judge’s staff attorney in a pending matter.

The attorney had concerns about a custody case in which she was not directly involved.

Her concerns related to a litigant D.V. 

On May 2, 2018, Thomas attended a “Brown Bag It Legal Luncheon” hosted by Judge Glass, who held the monthly luncheons so that local attorneys could discuss general legal topics in an informal manner. During the luncheon, Thomas proposed a hypothetical based on D.V.’s custody matter—but without using any names or specific facts—and sought guidance from the attendees regarding how someone who was not involved in the matter could alert the court to concerns about the proposed arrangement.

Luncheon attendees agreed that it would be inappropriate to directly contact the judge presiding over the case. At her disciplinary hearing, Thomas testified that Judge Glass then stated that if the matter were before her, she would want a detailed letter sent to her staff attorney so that the judge would not see it. According to Thomas, Judge Glass explained how her staff attorney handles ex parte letters and stated that if her staff attorney determined that any action was necessary based on a letter, the letter would be shared with the litigants. Thomas further testified that at the end of the luncheon, Judge Glass patted her on the back and stated, “Now you get that letter out.”

Judge Glass and her staff attorney, Amy Barnes, also testified at Thomas’s disciplinary hearing and disputed that the judge had invited or suggested sending a letter to her staff attorney in response to Thomas’s hypothetical. Judge Glass and Barnes acknowledged that at the luncheon, the judge outlined her office’s protocol for handling ex parte letters. Specifically, the judge testified that she told the group that her office “[i]nevitably” receives letters “from a concerned grandmother, a neighbor,” a detention home, or the county jail and that in an effort to shield her from such communications, her staff attorney reviews them and either returns them or takes necessary action. Judge Glass also testified that she would never say, “Get that letter in” because she does not want or encourage such letters.

The attorney sent a four-page letter to chambers and addressed to Ms. Barnes shortly thereafter.

D.V. won custody and was able eventually to see the letter. D.V. filed the bar complaint.

Thomas, Judge Glass, and Barnes testified that at the brown-bag luncheon, Judge Glass discussed her office’s protocol for handling ex parte letters. But the fact that Judge Glass had publicly discussed an internal protocol for handling ex parte communications did not authorize Thomas—an officer of the court—to send one. In other words, it was unreasonable for Thomas to presume the existence of the protocol created an avenue for her to communicate with the judge through her staff attorney without including the parties to the case and their counsel.

The court rejected the contention that the communication was not ex parte

Contrary to Thomas’s contention, her letter presented a one-sided view of D.V. and advocated that “the court”—which is Judge Glass—take certain actions on behalf of the child. An attorney’s interjecting such information into a pending adjudicative proceeding—outside the presence of other counsel and parties—amounts to an ex parte communication.

The court considered her unblemished record in imposing reprimand.

Justice Stewart dissents and would find no violation because the letter went to the judge’s assistant

as the majority opinion acknowledges, this court has never before applied Prof.Cond.R. 3.5(a)(3)(i) to an attorney’s communications with a judge’s staff attorney. Perhaps one reason for this is that nothing in Prof.Cond.R. 3.5(a)(3)(i) or its comments explicitly prohibits such communications.

Thus bereft of any helpful language in the rule, the majority looks to other disciplinary decisions of this court for support for its holding. But the cases it relies on are distinguishable.

The dissent notes that the attorney did not represent a party in the custody case.

I fail to see how Thomas willfully breached her duty under Prof.Cond.R. 3.5(a)(3)(i) when the language of the rule does not prohibit her actions and she seemed to have believed that if she followed the court’s protocol for screening ex parte communications, it would stop the contents of the communication from reaching the judge. Indeed, it is telling that despite lawyers’ ethical duty under Prof.Cond.R. 8.3 to report rule violations when they see them, neither Judge Glass nor the staff attorney nor counsel for D.V. (the intervenor in the dissolution case) reported Thomas’s communication as a potential violation of the Rules of Professional Conduct. Instead, it was D.V. who filed the grievance against Thomas once she became aware of the letter—and before she even knew of the letter’s contents.

Justice Stewart would not impose a sanction even if there was a technical rule violation given the attorney’s 36 years of unblemished practice and lack of any ill motive.  (Mike Frisch)