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.  

Listservs:  Ex Parte Communications with Judges and the Failure to Protect Client Confidences

Legal  listservs are a great way to exchange information regarding nearly every aspect of the practice of law.  However, they also present the possibility of inappropriate ex parte communications with judicial officers and of inappropriate disclosure of confidential client information.  Consider a posting seeking an accountant to serve as an expert witness.  A member of the listserv responds with the name and credentials of a CPA.  Another member replies with some criticism about the CPA, and a judge on the listserv realizes that the same CPA is to testify before him the following week.  The judge posts his own message advising that messages should be censored to avoid ex parte contact. 

The L. A. County Bar Association Professional Responsibility and Ethics Committee poses the above hypothetical in its Opinion No. 514. (See it here) Therein, the Committee concludes that although even “innocent” (i.e., negligent) ex parte contacts can still violate Rule of Prof. Conduct 5-300(B) (Contact with Officials), simply suggesting or commenting regarding an expert “does not evince any intent to engage in direct or indirect contact with the judge.”  Nonetheless, in order to reduce the likelihood of such contact, listserv users “must always consider who else may have access.” 

The Committee also notes that judges have independent duties to avoid unintended contacts regarding issues in controversy and concludes that a “judge should ignore rather than respond to information mistakenly received about a pending matter.”  The obligations regarding ex parte contact also apply to lawyers acting as temporary judges or arbitrators. 

An additional concern addressed to a lesser degree in the above opinion is the possibility of waiving the attorney work product protection and otherwise disclosing confidential client information.  “New forms of communication can seductively cause lawyers to forget their ongoing duty to maintain the confidences of their respective clients.”  Indeed, in that one has no control over information posted on a listserv—despite whatever the listserv’s user rules provide regarding forwarding postings to others—one needs to be very careful in the use of this means of communication.

--Luis E. Ventura

**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.**