The Judicial Qualifications Commission has been asked for an Advisory Opinion on the following questions:
l. Is it appropriate for the court, or the court’s law clerk upon direction from the court, to contact the prevailing counsel and request a draft which is to include material specifically requested by the court?
2. If it is appropriate for the court to request such a draft, is it necessary for the court to notify opposing counsel that the court has made such a request of the prevailing counsel?
3. If it is necessary for opposing counsel to be notified of the court’s request to prevailing counsel, is it necessary for the court to notify opposing counsel immediately or may the court wait until it has reviewed the draft from the prevailing counsel, requested modification of the draft, and received a subsequent draft which is satisfactory to the court?
4. If notice to opposing counsel is necessary, is it also necessary for the prevailing counsel to forward a copy of the proposed draft to opposing counsel for review prior to the court’s entry of a written order? Must each draft be given to opposing counsel for review or only the final draft which the court finds satisfactory?
5. If it is not necessary for the opposing counsel to be notified of the court’s request to prevailing counsel, is it necessary for the court to inform opposing counsel after the entry of the written order that the findings of fact and conclusions of law were drafted by the prevailing counsel?
6. If it is appropriate for the court to request the prevailing counsel to prepare a draft, what procedure does the Commission recommend the court follow given (a) the wasted attorney time and added fees involved in requiring proposed drafts from both the prevailing and opposing counsel, (b) the fact that any contact by the court would be by telephone and therefore off the record, and (c) the argument that the contact, particularly if made by a law clerk, does not constitute the entry of an order and therefore notice to opposing counsel could lead to actions by opposing counsel to nullify the court’s decision, such as a voluntary dismissal by a losing plaintiff’s counsel?
Rule 2.9(A) provides:
Judges 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. Judges shall not initiate, permit, or consider ex parte communications, or consider other communications made to them outside the presence of the parties, or their lawyers, concerning a pending proceeding or impending matter, subject to the following exceptions.
Subsection (2) allows Judges to obtain the advice of a disinterested expert on the law.
For that reason, it is not appropriate for the court to have ex parte communications with prevailing counsel with reference to the preparation of proposed findings of fact and conclusions of law, but the court may, if it elects to do so:
(a) request counsel for both parties to submit a proposed findings of fact, conclusions of law and final judgment; or
(b) after the court has reached a decision on all questions at issue, announce its decision to all counsel and request prevailing counsel to draft, serve on opposing counsel, and submit to the court findings of fact, conclusions of law and a final judgment in accordance therewith.
[Pertinent Code of Judicial Conduct provisions: Rules 1.2, 2.9(A). Cross reference to other relevant opinions for review: #44, #184, #216.]