Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Beware: Ex Parte Communications Can Be Toxic

In Maaso v. Signer (2012) 203 Cal.App.4th 362, the Court affirmed an order vacating an arbitration award, concluding the award had been procured by “undue means” pursuant to California Code of Civil Procedure section 1286.2.

Maaso involved a medical malpractice action that was subject to a three-member panel arbitration. During the arbitration, the plaintiff’s party arbitrator had moved business addresses and provided the defense with a new business card. A few months later, when the case had been submitted and the ruling was still under consideration, the defendant’s party arbitrator sent a five page letter to the neutral arbitrator further arguing the defendant’s position on causation, an issue which the neutral arbitrator noted to be undecided at that point. The letter was faxed to the neutral arbitrator and indicated a “cc” to the opposing side, but the copy of the letter was mailed, not faxed, to the plaintiff’s arbitrator and sent to the old business address.

The neutral arbitrator found in favor of the defense, concluding that while the defendant physician was negligent, the Plaintiff had failed to prove causation. After the decision, the plaintiff’s arbitrator received the defendant’s letter arguing against causation and he filed a petition to vacate the award pursuant to section Code of Civil Procedure section 1286.2 arguing the letter constituted impermissible ex parte communications and thus the award was procured by undue means. The lower court vacated the award.

The appellate court affirmed the decision to vacate and thoroughly analyzed section 1286.2, which “vests the trial court with the power to vacate an arbitration award that has been procured by corruption, fraud or other undue means.”  Although the statute does not define “undue means”, the Court explained that “a fundamentally fair hearing requires... notice, opportunity to be heard and to present relevant and material evidence and argument before the decision makers ...."  The Court held that an ex parte communication between a party arbitrator and a neutral arbitrator while the decision remains under consideration “undermines the fairness and integrity” of the arbitration process. Thus, a resulting award is one procured through “undue means”.

Although the Maaso case involved the comparatively unique situation where a party’s arbitrator makes the impermissible ex parte communication, the prohibition on various types of ex parte contact is, for attorneys, clearly defined. The California Rules of Professional Conduct identify a number of prohibited ex parte communications. For example, Rule Rule 5-300 states that an attorney “shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer, except: (1) In open court; or (2) With the consent of all other counsel in such matter; or (3) In the presence of all other counsel in such matter; or (4) In writing with a copy thereof furnished to such other counsel; or (5) In ex parte matters.  A similar prohibition is found in 2-100, which governs attorneys communicating ex parte with parties who are known to be represented by counsel.

Attorneys are well advised to exercise caution when engaging in any form of ex parte communication with Judges or neutral decision makers that does not explicitly include the opposing party.

–Patrick Kearns

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**