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August 15, 2014
Ex parte communication in a criminal case is a poor idea

By Kathy J. Bible
Bar Disciplinary Procedure Counsel

Is a prosecutor ever justified in having an ex parte hearing or conversation with the trial judge in a criminal case with no notice to the defense counsel?

Is a Florida prosecutor ever ethically permitted to have a completely ex parte hearing with the presiding judge in a criminal case about something the criminal defendants are doing or may do? The writer is unaware of any law that authorizes ex parte contact with a judge or judicial officer in this criminal trial context. Prosecutors may sometimes believe that they are justified in pursuing an ex parte hearing with the presiding judge when they learn through recorded prisoner phone calls or other confidential information that a criminal defendant is threatening witnesses, judges, or counsel in a criminal case. While these facts are certainly cause for concern, they do not justify an ex parte conversation or meeting with the judge before whom the matter is pending without any notice to defense counsel or an opportunity for defense counsel to be present at all hearings on the matter.

Rule 4-3.5, Florida Rules of Professional Conduct, governs attorneys’ dealings with judges and jurors in all types of cases in Florida courts.

Rule 4-3.5(b) provides, in pertinent part:

“(b) Communication with Judge or Official. In an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the cause with a judge or an official before whom the proceeding is pending except:

“(1) in the course of the official proceeding in the cause;

“(2) in writing if the lawyer promptly delivers a copy of the writing to the opposing counsel or to the adverse party if not represented by a lawyer;

“(3) orally upon notice to opposing counsel or to the adverse party if not represented by a lawyer; or

“(4) as otherwise authorized by law.”

This rule makes clear that there are no ethical exceptions for criminal prosecutors in the situation described above. The appropriate response upon learning that witnesses or trial participants are or may be in danger is to ask for a judicial hearing with all parties present to discuss the matter. The issue may only be presented to the presiding judge if a hearing is set with counsel for all the parties, including the attorneys for the defendant(s), present.

In this case the prosecutors may feel that they are justified in their desire for an ex parte hearing because there is a real concern that people’s lives may be in danger. They may fear that the defense attorney will tip off his or her client that the authorities know about his plan. However, these facts do not change the options for the prosecutor. A hearing with all parties present on the record is the only option available on these facts under Rule 4-3.5(b). There are some limited exceptions to this rule for civil matters involving requests for temporary injunctions via statutory right referred to in Rule 4-3.5(b)(4). However, the Bar is unaware of any such legal exception in the Florida Rules of Criminal Procedure or Florida criminal statutes. The prosecutors could ask that the transcript of the hearing on this sensitive matter be sealed, but all counsel must be present at any hearings before the presiding judge on this issue.

Florida court decisions underscore this conclusion. In its decision in State v. Marks, P.A., 758 So. 2d 1131 (Fla. 4th DCA 2000), review den.,(2001), the Fourth District Court of Appeal held that prosecutors were not entitled to speak with the trial judge on an ex parte basis in a criminal case regarding an alleged crime-fraud exception to the attorney client privilege. Following 17 ex parte hearings with prosecutors on this matter, the trial court had ordered production of privileged client personal injury files. The appellate court held that these ex parte hearings and the resulting release of files gave the state such an advantage that the court upheld dismissal of the case against the defendant for due process violations.
Even out of court, seemingly social ex parte communications with a trial judge in a criminal case violate Rule 4-3.5(b). In The Florida Bar v. Von Zamft, 814 So. 2d 385 (Fla. 2002), the Florida Supreme Court held that an assistant state attorney violated the ex parte rule when he persisted in asking the trial judge for a continuance in a capital case on behalf of another prosecutor while at lunch with the judge (defense counsel was not present). The judge warned the prosecutor not to speak with her about the case, but he persisted, asking the judge for the continuance. He further told the judge a continuance would be in everyone’s best interest because the defense attorney would not be able to be ready in time. The defense counsel was not given an opportunity to be present or to agree or disagree with this assertion.

The trial judge later granted the continuance and then recused herself from the case. The prosecutor argued that the communication could not be considered ex parte because it was about a scheduling matter and did not go to the merits of the case. The Florida Supreme Court disagreed, concluding that the attorney had attempted to influence the trial judge, and that no exigent circumstances existed that would preclude the attorney from notifying the defense attorney that he intended to communicate with the judge about the case and giving the defense attorney a chance to be present. The court publicly reprimanded the state attorney for violations of the ex parte rule and for conduct prejudicial to the administration of justice.

Judges have been sanctioned as well as attorneys in Florida for violation of rules forbidding ex parte communications. The Florida Supreme Court considered similar facts in Inquiry Concerning a Judge: Clayton, 504 So. 2d 394 (Fla. 1987). Proceedings had been instituted by the Judicial Qualifications Commission against a judge for violating Canon 3 of the Florida Code of Judicial Conduct. County Court Judge Clayton admitted that on four occasions, he had conducted ex parte proceedings with defendants and/or defense counsel to dispose of criminal cases pending before him as judge. In some instances, these dispositions took place without the knowledge of the defendant and in some cases were not done in open court.

The court found that the judge had violated Florida Code of Judicial Conduct Canon 3(A)(4) which implements the fundamental requirement that all judicial proceedings should be attended by all parties, except in the very limited exceptions where temporary injunctions are allowed by statute. Accordingly, the Court approved the JQC’s stipulation and recommendation and publicly reprimanded Judge Clayton.

The Florida Supreme Court has also held that it is improper for a trial judge and a prosecutor to have an active social and emotional relationship during a criminal case. The Florida Bar v. Gardiner, 39 Fla. L. Weekly S379 (June 5, 2014). Former judge Gardiner was recently disbarred for conduct while on the bench. This conduct included thousands of personal contacts via phone, email, and text, with the lead prosecutor in a death penalty case in which Gardiner was the trial judge. She failed to disclose her relationship with the prosecutor to the defense counsel in the case and later misled the JQC regarding her relationship with the prosecutor both during and after the criminal trial. The Florida Supreme Court found the former judge’s conduct was more egregious even than the prosecutor’s because as a trial judge, “she had a greater responsibility to preserve the integrity of the judicial process and to ensure that the [criminal] trial was fair.” Gardiner at S382-3.

In a related case, The Florida Bar v. Scheinberg, 129 So. 3d 315 (Fla. 2013), the Florida Supreme Court ordered a two-year suspension for a prosecutor who exchanged 949 cell phone calls and 471 texts with the trial judge who was presiding over a first degree murder trial in which the respondent was the prosecutor. These communications were not disclosed to the defense. When the facts came to light, the state agreed to a new trial for the defendant to avoid any appearance of denial of due process. The respondent claimed that none of the texts or calls involved the pending case. The Court found that nevertheless the undisclosed communications violated Rule 4-3.5(b) and were prejudicial to the administration of justice in violation of Rule 4-8.4(d), Florida Rules of Professional Conduct, by damaging the public’s perception of judicial impartiality.

In conclusion, if an attorney is ever in doubt about whether an ex parte communication with a judge in a criminal case is allowed, that attorney should choose to initiate no ex parte contacts with a trial judge.

Attorneys may consult the Bar’s Ethics Hotline at 800-235-8619 for advice on specific facts. If an attorney feels that he or she has to raise an issue with a trial judge immediately, that attorney should present the matter to all parties in a preliminary hearing, following the dictates of Rule 4-3.5(b), Florida Rules of Professional Conduct, unless there is a statute directly on point that specifically allows an ex parte hearing, as in some civil matters.

[Revised: 02-27-2015]