Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 292

Adopted July 22, 1977

SYLLABUS

Lawyers and Judges Should Exercise Care In Their Public and Private Social Relationships To Avoid Creating Any Appearance or Impression That A Lawyer Enjoys A Special Relationship With, Or Possesses A Particular Ability To Influence, A Judge, Which Might Affect Such Judge's Discharge of His Judicial Responsibilities.

QUESTION SUBMITTED

"Is it consistent with the Code of Professional Responsibility and the Code of Judicial Conduct for Lawyers Having Matters Pending Before Judges to Offer Hospitality to Such Judges By Inviting Them To Luncheons or Other Social Occasions?"

OPINION

The origin of the inquiry is a practice allegedly followed by certain members of the Bar of extending luncheon invitations to judges before whom they have matters pending. (The members of the Supreme Court, the Court of Criminal Appeals and the Court of Appeals are not involved in this inquiry.) This was specifically alleged to have occurred on one occasion immediately after the presentation of an oral argument by one such lawyer, and is further generally alleged to also occur frequently after trials handled by certain lawyers. Opposing lawyers are not concurrently invited to participate in such lunches.

The applicable Disciplinary Rule is as follows:

"DR 7-110. CONTACT WITH OFFICIALS

(A) A lawyer shall not give or lend any thing of value to a judge, official, or employee of a tribunal.

(B) 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 official proceedings in the cause.

(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

(4) As otherwise authorized by law."

Although a lunch or other hospitality may be considered to be a "thing of value" (DR 7-110(A)), EC 7-34, condones gifts permitted by Section C(4) of Canon 5 of the Code of Judicial Conduct, which allows (Subsection 4(b)) a judge to receive "ordinary social hospitality." Furthermore, the mere fact that a lawyer and a judge have lunch together does not give rise to a presumption that ex parte communications forbidden by DR 7-110(B) and Section (A)(4) of Canon 3 of the Code of Judicial Conduct (which similarly forbids ex parte communications on pending matters) take place. Rather, the applicable presumption, in the absence of positive evidence, would appear to be that both the lawyer and the judge conducted themselves in an ethical manner. The inquiry does not allege that ex parte communications have in fact taken place in the course of these lunches. If such communications should occur, this would, of course, subject the lawyer to discipline, and, if frequent and habitual, could result in proceedings against the judge in the Court on the Judiciary.

It must also be recognized that since judges were lawyers before becoming judges, and continue to have a great deal of day-to-day contact with lawyers in the discharge of their judicial functions, it is understandable that many of their personal and social relationships would continue to be with lawyers. It would indeed be unfortunate if some sort of social "iron curtain" between judges and other members of the legal profession should be erected, because the administration of justice would be severely hampered if a spirit of cooperation and understanding did not flourish between members of the Bench and Bar. This understanding would be difficult to attain if lawyers and judges did not feel comfortable in ordinary social intercourse with each other.

However, the obvious problem which can arise in this regard is delineated, and its solution given in Canon 3 of the old Canons of Professional Ethics:

"3. ATTEMPTS TO EXERT PERSONAL INFLUENCE ON THE COURT

Marked attention and unusual hospitality on the part of a lawyer to a Judge, uncalled for by the personal relations of the parties, subject both the Judge and the lawyer to misconstructions of motive and should be avoided. A lawyer should not communicate or argue privately with the Judge as to the merits of a pending cause, and he deserves rebuke and denunciation for any device or attempt to gain from a Judge special personal consideration or favor. A self-respecting independence in the discharge of professional duty without denial or diminution of the courtesy and respect due the Judge's station, is the only proper foundation for cordial personal and official relations between Bench and Bar."

Canon 2 of the Code of Judicial Conduct provides, in pertinent part:

"A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL HIS ACTIVITIES

A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness."

Canon 9 of the Code of Professional Responsibility reminds us that "a lawyer should avoid even the appearance of professional impropriety," and DR 9-101(C) warns that "a lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal .... or public official."

The very fact that the Board of Governors has received an inquiry complaining of the conduct of certain members of the Bar, and, by implication, of that of certain judges, raises a question as to whether the activities in question do not give an "appearance of impropriety." This is particularly true when the luncheon takes place immediately after a case has been tried or orally argued before the judge accepting such hospitality. A lay client, who often finds it difficult to understand why his lawyer can continue to have a friendly relationship with his opponent's counsel during the process of a trial, obviously reacts very unfavorably when he sees the judge who will decide his case in intimate conversation over lunch with the lawyer for the other side, just after the client's trial has been completed and before the decision has been rendered.

In this regard, as in many other areas involving ethical questions, a lawyer's judgment and good taste are as important as written rules. It is therefore hoped that this opinion will serve to remind all lawyers and judges of the importance of avoiding conduct which could leave the impression, albeit unjustified, that a certain lawyer possesses particular influence over, or enjoys a special relationship with, a judge, which could influence the latter in the discharge of his judicial duties. Even ordinary hospitality, under certain conditions, can leave such an impression.

It is recognized that lawyers who practice frequently before certain courts or other tribunals, may usually have matters pending decision, and it is not intended to imply that they may never offer hospitality to judges of that tribunal, so long as any such matter is pending. It would not, however, be unreasonable to expect those lawyers not to invite a judge of that tribunal to lunch during or immediately after the actual trial or oral argument of such a matter; this would avoid arousing suspicion on the part of opposing counsel as to whether ex parte communications are occurring, and distrust of the judge's objectivity on the part of the layman litigant. Furthermore, too-frequent or excessive hospitality such as that referred to in old Canon 3 of the Canons of Professional Ethics quoted earlier) also can create an "appearance of impropriety" which should be avoided by both lawyers and judges.