JI-83

February 25, 1994

SYLLABUS

A lawyer may not contact a judge about the possible recusal of the judge outside the presence of opposing counsel.

References: MRPC 3.5(b); MCJC 3A(4).

TEXT

An inquiry has been made as to whether a defense counsel, who is aware the judge assigned on a matter was previously married to a partner in plaintiff's firm (not counsel of record), may approach the judge to discuss the possible recusal of the judge prior to the filing of a motion for recusal and without notifying opposing counsel.

The general rule is that counsel is barred from any ex parte communication with the judge. MRPC 3.5 states:

"A lawyer shall not:

"(a) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law;

"(b) communicate ex parte with such a person concerning a pending matter, except as permitted by law; or

"(c) engage in undignified or discourteous conduct toward the tribunal."

Similarly, the general rule for the judge is found in MCJC 3A(4), which states:

"A judge should accord to every person who is legally interested in a proceeding, or the person's lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate, consider, nor permit ex parte or other communications with a litigant or attorney concerning a pending or impending proceeding."

The inquirer appears to recognize the limit on ex parte communication but at the same time raises the concern for discretion so as to not embarrass or expose the judge's personal life to public scrutiny. Whether the judge serves is an issue potentially impacting the plaintiff and the plaintiff's counsel without giving them an opportunity for consultation and participation concerning the proceeding pending before the judge. A lawyer may not contact the presiding judge regarding judicial disqualification outside the presence of other counsel in the matter. MRPC 3.5(b).