That’s What Friends Are For

Lawyer A’s conduct is governed by Rule 3.05(b) of the Texas Disciplinary Rules of Professional Conduct, which says “A lawyer shall not . . communicate . . . ex parte with a tribunal for the purpose of influencing that entity or a person concerning a pending matter.” Lawyer A is a certainly a lawyer communicating ex parte with a tribunal, Judge B, about a pending matter. The question is whether he was trying to influence Judge B. 

If Lawyer A had merely acknowledged the compliment and made a general comment about doing the best he can do, there would be no violation. The tricky part is his offhand comment that, “This means everything to them.” This sounds as if he is trying to engender sympathy while urging the judge to rule based on the economic hardship to this family, rather than on the merits of the control argument. On the other hand, after sitting through the trial, the judge has probably heard extensive evidence of the family’s hardships and is aware that personal injury cases are often an all-or-nothing proposition for the injured party. So nothing in this remark tells the judge anything he does not already know or reveals any off-the-record information to nudge him toward a ruling. 

The remark would have been far worse if the lawyer had injected something about his own financial situation relative to this case.  Imagine he had said something like, “Well you know I have this on a contingency fee, and if you don’t grant a new trial I not only don’t earn a penny, I lose about $250,000 in expenses. And you know I’m going through a divorce and she is cleaning me out, so I really need this one.” There may be some implied nobility in speaking up for his client, but certainly not when he is speaking of his own interests.

Nevertheless, Lawyer A should not have said anything that could be even remotely construed as trying to influence Judge B. The comment about the importance of this matter to Client C and his family certainly falls into that category. 

Or to put it another way, Lawyer A may have genuinely felt he did not do anything improper, but you can bet that his opposing counsel would have a far different view, were she to find out about it.  

As for Judge B, Canon 3.B(8) of the Texas Code of Judicial Conduct provides, “A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties . . . concerning the merits of a pending or impending judicial proceeding.” Judge B definitely initiated a communication outside the presence of all the parties. The question is whether the communication was “concerning the merits” of the pending case. 

The judge mentioned a critical pending motion, mentioned that he was conflicted about how to rule, and made a general comment about what would guide his ruling. That’s certainly closer to being about the merits than if Judge B simply said, “It was good to have you in my court last month.” On the other hand, the violation  would be even more clear-cut if Judge B had said, “I’m almost persuaded by your argument on the actual exercise of control, but how do you overcome the foreman’s testimony?” 

Clearly, however, the Judge does not need to mention a specific argument for a communication to be “concerning the merits.” And even if the Judge’s own comments did not address specific arguments, his comments could be construed as an invitation for Lawyer A to discuss the merits—which would clearly be improper. 

Judge B should not have initiated a conversation about his ruling on this critical pending motion without both lawyers present.  Lawyer A should have said nothing more about the case in response.