I Feel Like We’re Missing Something

The ex parte rule governing attorneys is Rule 3.05(b) of the Texas Disciplinary Rules of Professional Conduct:

A lawyer shall not:

(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;

(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:

(1) in the course of official proceedings in the cause;

(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;

(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

(c) For purposes of this rule:

(1) Matter has the meanings ascribed by it in Rule 1.10(f) of these Rules;

(2) A matter is pending before a particular tribunal either when that entity has been selected to determine the matter or when it is reasonably foreseeable that that entity will be so selected.

While Kelsey did have an ex parte conversation with a tribunal about a pending matter, the question here is whether she was trying to influence the judge. Although she did not initiate the call, the rule does not differentiate based on who placed the call. It merely says that a lawyer “shall not communicate ex parte with a tribunal.” However, she did not ask the judge to take any action, but instead listened passively while the judge dictated his changes to the proposed order. Thus, there is no evidence that Kelsey communicated with the judge “for the purpose of influencing” the judge, which is required to violate Rule 3.05(b).

However, prudent attorneys are advised to avoid any ex parte communication with a judge about a pending matter to avoid having to defend one’s purpose in the communication to a grievance committee or jury. When receiving a phone call from a judge, an attorney should ask the judge to conference in opposing counsel to protect both and the judge and themselves from the appearance of an improper ex parte communication.

As for the judge, Canon 3.B(8) of the Texas Code of Judicial Conduct states:

(8) 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 other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding. A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control. This subsection does not prohibit:

(a) communications concerning uncontested administrative or uncontested procedural matters;

(b) conferring separately with the parties and/or their lawyers in an effort to mediate or settle matters, provided, however, that the judge shall first give notice to all parties and not thereafter hear any contested matters between the parties except with the consent of all parties;

(c) obtaining 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;

(d) consulting with other judges or with court personnel;

(e) considering an ex parte communication expressly authorized by law.

Because the judge discussed the substantive aspects of the order in the phone call with Kelsey, the conversation did concern the merits of a pending judicial proceeding. Therefore, the judge violated Canon 3.B(8). The best answer is B.