Author: LegalEase Solutions

Introduction

Our client needs to prepare a response to an Emergency Motion to Prevent Consideration by Court of Ex Parte Communication.  The opposing side claims that sending certain documents relating to the present case to the Judge without formally filing such documents pursuant to the Michigan Court Rules tantamounts to ex parte communication.  Our client gave notice to the opposing side by sending copies of all documents delivered to the court.  Still the opposing side claims that because the client did not pursue the normal course of filing documents with the court, such delivery of documents to the court was an improper conduct falling under the category of ex parte communication. Our client would like a memo which articulates the position that such delivery of documents to the court was not ex parte communication under Michigan law.

Question Presented

Is the delivery of certain documents relating to a pending case directly to the Judge, without formal filing per the Michigan Court Rules, an ex parte communication?

Short Answer

Possibly no.  It is the discretion of the judge to decide if a direct filing of a document amounts to ex parte communication.

Discussion

An ex parte communication between the judge and any one side in a pending lawsuit is considered “clearly at odds with our adversary system of justice.” Knop v Johnson, 977 F2d 996, 1011 (6th Cir. 1992).  Also, Michigan Rules of Professional Conduct Rule 3.5 (b) states that no lawyer shall seek to “communicate ex parte with a judge, juror, prospective juror, or other official concerning a pending matter, except as permitted by law.”  However, there are circumstances where ex parte communications may be overlooked.  United States v. Minsky, 963 F.2d 870, 874 (6th Cir. 1992).

According to the Michigan Code of Judicial Conduct Canon 3, a judge is prohibited from permitting or initiating an ex parte communication in most circumstances.  The Michigan Code of Judicial Conduct, Canon 3(A)(4) reads:

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 as follows:

(a) A judge may allow ex-parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided

(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and

1. ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.

(emphasis added).

Thus, as per Canon3(A)(4)(a)(i), whether the filing party would gain a tactical advantage over the opposition is what the court considers in deciding whether the filing amounted to ex parte communication or not.

Additionally, in overlooking an ex parte communication, courts have also considered whether the opposition has been properly notified of such filing.  For example, in Knop, 977 F2d 996 (6th Cir. 1992), the court dealt with the issue if an ex parte contact between a judge and a witness was improper. This case was filed by some prisoners, demanding various rights denied by the director.  The prisoners prevailed at the trial level. On appeal, among various other issues, the court considered the issue of ex parte communication.  The appellate court determined that the ex parte communication between the judge and the witness was proper because the witness had “carefully kept all parties informed of the information that had been requested.” Id.  The judge in Knopp, “requested for some additional information from the witness.” In addition, there were “one-on-one telephone calls from the court’s law clerk to the plaintiff’s key witness” Id. at 1011.  Even though the appellate court disfavored such communication between the judge and the witness, it found those lapses “relatively harmless.” Id.  The court reasoned that none of the documents included in the three packages of materials submitted by the key witness in response to inquiries made by the Court formed any basis for the judge’s findings of fact or his conclusions of law in his Memorandum Opinion and Order.   Id.  The only concern of the court was whether proper notice was give to the defendant in taking judicial notice of proofs. Id.

[See also Arnold v. Strola,  1999 Mich. App. LEXIS 1436 (Mich. Ct. App. 1999) (Unpublished)]

Therefore, it is the discretion of the judge to determine if the documents relating to the current case sent by our client to the Judge would amount to ex parte communication. The judge will settle this issue based on the Canon 3(A)(4) (i).  If the judge finds that the documents presented by our client will not gain a procedural or tactical advantage, then the judge may go further to verify whether the opposition was notified about the documents.  In the instant case, our client has served copies of all the documents simultaneously to the judge as well as to the opposition counsel.

Conclusion

It is the discretion of the judge to decide if the filing of the document directly to the judge amounts to ex parte communication.  The standards that a judge will apply to make the determination are: (1) if the filing party will gain a procedural or tactical advantage, and;  (2) if notice was provided to the opposition.  Since the client has already served the opposition counsel with copies of the documents presented to the judge, the only concern of the judge would be to see if the filing party will gain a procedural or tactical advantage as a result of the ex parte communication