1993-01: What must a judge do when an ex parte communication is attempted?

Opinion No. 93-1

September 21, 1993

TOPIC:       What must a judge do when an ex parte communication is attempted?

DIGEST:      If a lawyer attempts what might be an ex parte communication but is stopped, a judge need not report the lawyer to the ARDC.

REFERENCES:  Illinois Supreme Court Rule 63B(3)of the Code of Judicial Conduct, Canon 3, (145 Ill.2d R.63); and Definition of "knowledge" in the Terminology Section of the Code of Judicial Conduct.

                              FACTS

A lawyer sees judge at a picnic and says, "I have a little problem in my community and it is all going to be in your lap tomorrow".  The judge asked if it were about a case in court and when told it was, the judge said he could not talk about it.

The next day, the judge contacts his Chief Judge and asks to switch court calls with another judge that day.

                             QUESTION

Is the judge required to report the lawyer to the ARDC?  Is the judge required to disqualify or disclose the attempted ex parte communication?  Should the judge seek to avoid that court call?

                              OPINION

No.  Illinois Supreme Court Rule 63B(3) of the Code of Judicial Conduct provides that if a judge has knowledge of a violation of the lawyer's ethics Rules, the judge "shall take or initiate appropriate disciplinary measures."  This does not require notifying the ARDC.  The quick response to the first statement of the lawyer was sufficient as long as nothing else happened.  While it might be nice to disclose the possible "attempt," that is not strictly required.  The same goes for switching calls.  This attempt at an ex parte communication is not a reason for switching calls or the judge disqualifying himself or herself from the case.  A judge has a responsibility to handle his or her share of the judicial workload.