Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 99-5

Date Issued: October 6, 1999

Judge's Receiving Ex Parte Letters from Prisoners

ISSUE

What is the ethical obligation of a judge upon receiving a letter from a prisoner regarding a case being tried by that judge or a case which has been concluded by that judge?

ANSWER: Stated in the opinion.

FACTS

An inquiry has been made as to when receipt of an ex parte letter from a prisoner with respect to a case pending before that judge or which has been concluded by that judge is improper. A related inquiry by the judge is what disposition should be made of such written communication whether the same is proper or improper.

DISCUSSION

Canon 3 provides: "A judge shall perform the duties of judicial office impartially and diligently."

Canon 3B(7) provides, in part, as follows:

7. A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
   1. Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
      1. The judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
      2. The judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.

The Commentary for Canon 3 provides: [T]o the extent reasonably possible, all parties or their lawyers should be included in communications with a judge.

On occasion judges receive ex parte letters from prisoners which may or may not concern the merits of a pending or concluded judicial proceeding. Canon 3B(7) expressly provides that a judge shall not "...permit, or consider ex parte communications..." except under the limited circumstances set forth in the Canon. The Preamble to the Canons provides that when the text uses "shall" it is intended to impose binding obligations, the violation of which can result in disciplinary action. The Committee is aware that an ex parte letter may be received from a prisoner who has either retained counsel or has court-appointed counsel or no determination has yet been made whether the prisoner will be assigned court-appointed counsel. The Committee is also aware that the ex parte written communication may relate to one or more of the exceptions contained in Canon 3B(7)(a) or may not concern a pending or impending proceeding.

Accordingly, the Committee is of the opinion that the judge may comply with Canon 3B(7) by taking the following action:

1. Preserve the original letter by delivering it to the clerk of court to be file-marked and retained in the file.
2. Send a copy of the letter to the prosecuting attorney and to retained or court-appointed counsel.
3. Read the letter to determine whether it is a proper or an improper ex parte communication under Canon 3B(7)(a).

If proper, the judge should follow the steps outlined in Canon 3B(7)(a)(i) and (ii). If improper, the judge should communicate in writing (which may be a form letter) to the prisoner, with a copy filed with the clerk and with a copy sent to the prosecuting attorney and any retained or court-appointed counsel, stating that the letter from the prisoner was an improper ex parte communication; that such communication should cease; that the judge will take no action whatsoever in response to the letter; and that a copy of the letter has been sent to the prosecuting attorney and to any retained or court-appointed counsel.

REFERENCES

Canons of Judicial Conduct, Canon 3B(7).

Opinion 154 (1933), Texas Committee on Judicial Ethics.

All opinions shall be advisory only, and no opinion shall be binding on the Judicial Inquiry and Review Commission or the Supreme Court in the exercise of its judicial discipline responsibilities. However, the Judicial Inquiry and Review Commission and the Supreme Court may in their discretion consider compliance with an advisory opinion by the requesting individual to be evidence of a good faith effort to comply with the Canons of Judicial Conduct provided that compliance with an opinion issued to one judge shall not be considered evidence of good faith of another judge unless the underlying facts are substantially the same. Order of the Supreme Court of Virginia entered January 5, 1999.

This page last modified: October 20, 1999