Thursday, October 1, 2015

Judicial Behaviour and Ex Parte Communication

A long-running story of Judicial misconduct in Florida concluded about a year ago. The Florida Bar News reported August 1, 2014 on the disbarment of former Circuit Judge Ana Gardiner. That is the process by which she has lost her license to practice law in Florida. 

The Florida Bar News story outlines a volume of communications between the Judge and a prosecutor in a capital murder trial. There were 44 messages in the days surrounding the defendant's sentencing. Judges do not communicate with any party to a case or to any attorney in a case without giving everyone involved a chance to participate. One-sided conversations are called "ex parte." I am regularly surprised by judges and attorneys who do not understand this. 

Former Judge Gardiner was out to eat in 2007 before the sentencing in that case and "ran into the prosecutor." They "decided to continue the evening in the bar" and a law student that was present was the one to suggest that there could be an "appearance of impropriety." Perhaps those closest to their legal education are the best at spotting legal issues? Law school provides exquisite detail and large volumes of information on a variety of topics. Upon graduation, we perhaps know more breadth of the law than at any other time in our careers. Then we begin to specialize and narrow our focus, and much of what we learned perhaps becomes distant memory?

The judge's communications in this instance were not disclosed to the defense when the trial resumed and the sentence was imposed. This is a defendant in a capital case, her or his life on the line, and the judge is communicating with the prosecutor that is seeking to take her or his life. After sentencing, the Judge's "relationship with the prosecutor intensified." When all of this came to light, the judge resigned from the bench in 2010, capping a twelve-year  judicial career. The prosecuting attorney involved was suspended by the Supreme Court and is therefore not currently permitted to practice law. 

Four years after her resignation from the bench, Judge Gardiner was eventually disbarred by the Court. In Florida, allegations against an attorney are investigated by The Florida Bar, and if probable cause is found, a referee is appointed to conduct a trial and recommend discipline. In this instance, the referee recommended something short of being disbarred. It is possible that the resignation from the bench was seen as sufficient punishment itself.

The Court, however, disagreed with a referee's recommendation for discipline and said "considering Gardiner's dishonest conduct and the harm that her actions have caused to the administration of justice in a capital first-degree murder case, we conclude that disbarment is the appropriate sanction." This suggests that both the activity, ex parte communication, and the seriousness of the situation in which it occurred, influenced the decision. 

Some might argue, from this contention, that ex parte communication is more serious if the case involved is more serious. Would the judge's "dishonest conduct" and harm to "the administration of justice" been less serious if it had been a misdemeanor trial in which she was presiding? In the workers' compensation context, is ex parte communication more troublesome in a permanent total disability case than in a "one time change" of physician case?

Ex parte communication is addressed in the Florida Code of Judicial Conduct, Canon 3, paragraph (7):

(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
(a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:
(i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.
(c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.
(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

From my perspective, I find it hard to distill from the Canon some factor regarding the seriousness of the case. It would seem that regardless of whether the case is over $12.00 in medical mileage reimbursement or $500,000 in permanent total disability benefits, the parties are each entitled to expect that their judge will follow this Canon and not engage in ex parte communication with any party or attorney. 

In what context? We find ourselves in an age of amazingly diverse communication opportunities. There is social media, email, texting and more recently I have learned that people wearing headsets actually converse while they play Internet-based games with one another. Apparently, still others communicate with text message-like opportunities while engaged in other online games. Are these exchanges or conversations communication? It would seem so. 

It is likely that those messages are about the game being played and not about other subjects. One recent situation brought to my attention involved a judge who participated in online gaming and in a group that included attorneys. They assure me that their communications were innocuous, related to the game, and had nothing to do with the workers' compensation system generally or anything the judge and attorney did professionally. But what appearance is created when those attorneys appear at a hearing and a conversation ensues about the game? About their previous communications? Is there an appearance that ex parte communication has occurred, or at least that it easily could have?

As the law student so aptly noted, might there be an "appearance of impropriety?" When a judge and counsel have the opportunity to speak privately, it is not the means (telephone, text, online game) that is critical. Each have the same capacity to afford inappropriate conversation. Would the Supreme Court have been less troubled if Judge Gardiner had communicated in the forum of an online video game? I suspect not. Judges need to remember that it is not the platform or the means of communication that is troublesome. 

What is troublesome is that communication is occurring without all parties or counsel present, or at least invited to be present. Were cases, concepts, or the law discussed? Were perceptions of the system or the procedures discussed? We will never know. There is no record, and when there is no record there is opportunity for conjecture, suspicion and distrust. There is just no room for ex parte communication, and the best tool for preventing misconceptions about all communication seems to be to have all that communication on the record.

The potential for appearances is too great. The risk of harm to the participants and the process is too great. The potential harm to the administration of justice is simply not worth it. The Judge lost her job and was disbarred. The prosecutor also lost the ability to practice law. It is the responsibility of both lawyers and judges to avoid ex parte communication. 

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