Tuesday, June 8, 2010
Ex Parte Communications--Money, Money, Money
Lawyers involved in litigation are ethically prohibited from ex parte communications with the court or judge concerning substantive issues under consideration by the court. Likewise, Judges are prohibited from ex parte communications with one party or his or her lawyer. Ex parte means "on one side only." If we are going to have a party, everyone is invited--this is a kindergarten rule that continues to apply in life, in court.
Unfortunately, this is life and in life the prohibition against ex parte communications is routinely ignored, in my experience. Too often in my career, I've had opposing counsel rub their special relationship with the court in my face and I admit that I've been in the uncomfortable position of being on the receiving end of some communications from a Judge or Court that I thought came dangerously close to that prohibited line.
Truly corrupt judges exploit this prohibition to line their pockets, this is when in the eyes of the public, "the fix is in." So today's example comes from Bad Lawyer's beloved Maricopa County, a legal vacuum rife with corruption and quasi-official terrorism. In this morning's Arizona Republic, reporters Pat Kosslan and Robert Anglen are relating the inquiry into Probate Judge, Lindsay Ellis. In short, Judge Ellis, who is sitting pro tem which means for "for the time being" in some jurisdictions Judges "sitting by assignment" or a "visiting judge." I don't know Judge Ellis, I imagine the Judge is a senior jurist sitting by appointment.
Judge Ellis issued an order granting legal and caregiver fees of $800,000 + in a case that were considered a wee bit steep by relatives who objected. It turns out the Judge was sharing via email his prospective order on the issue of the fees with the attorneys who were to receive the fees. Damn, fine deal!
Implicit in discovering this breach of ethics is the question, what's in it for Judge Ellis?--and, how long has this practice been going on throughout the Judge's career. You see, Probate court is loaded with the potential of undetected unethical conduct. While it is a gross oversimplification, I had a probate attorney laughingly tell me, Probate clients: the deceased, the invalids--are the best, because they rarely complain. When intestate matters (probate matters without wills or written guardianships) come before the court, the opportunity for Judges to mete out favors to lawyers, appraisers, caregivers, and others has historically proven ripe for abuse and exploitation.