12 Bench&Bar of Minnesota sJuly 2014 www.mnbar.org

ProfessionalResponsibilityProfessionalResponsibilityBY MARTIN COLE

Martin Cole

is director of the

ofice of lawyers

Professional respon-

sibility. an alumnus

of the University of

Minnesota and of the

University of Min-

nesota law School,

he has served the

lawyer disciplinary

system for 25 years.

The judicial election season is now oficially upon us. It ap-pears that, despite another two years of concern about the po-

tential for contested judicial elections being heavily funded by out-of-state en-tities with agendas, the campaign scene will be relatively quiet against incum-bents. A few open-seat elections will be interesting, but as best I can judge (pun intended!) at this point, only a very few races appear to include party-political candidates. The potential for such judi-cial election problems certainly remains an issue, and a realistic issue for the fu-ture; but at least for one more election cycle we will again watch other states’ nasty campaigns instead of our own … and that is just ine.

Many lawyers desire to become judges. A judgeship is still a position of public importance, prestige and honor—and inancial sacriice for many private practitioners. Until they become judges, however, lawyers must deal with judges from the perspective of a practicing attorney. In that role, how lawyers are permitted to deal with a judge is governed by several Min-nesota Rules of Professional Conduct (MRPC).

Ex Parte Contacts

Perhaps the rule most directly on point is Rule 3.5(g), MRPC, which

states that “[i] n an adversary proceeding a lawyer shall not communicate or cause another to communicate as to the merits of the case with the judge … .” This is of course formal codiication of the basic tenet that a lawyer may not commu-nicate ex parte with a judge as to the merits of a matter. So does that mean that a lawyer may never communicate

with a judge? Of course not. The rule itself sets out a list of exceptions to the basic premise where a judicial contact is permitted: in the course of oficial proceedings, in writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to a pro se ad-verse party, orally upon adequate notice to opposing counsel or to the pro se ad-verse party, or if otherwise authorized by law. “In the course of oficial proceed-ings” obviously allows an attorney to appear and argue the merits to a judge in a proper ex parte hearing, for example.1

Issues involved in communicat-ing with a judge pursuant to Rule 3.5(g) usually revolve around the terms “the merits of the case” or “promptly” deliver a copy to opposing counsel. Many lawyers seem to assume the “the merits” and procedural issues are mutu-ally exclusive categories—that is, if an ex parte contact to a judge, or perhaps to the judge’s law clerk or assistant, is about what the lawyer believes to be a procedural matter such as scheduling a motion hearing date, then the prohi-bition against ex parte contacts does not apply. This is not always true. For example, a request that a judge recuse herself or that opposing counsel be disqualiied due to a conlict of interest may not technically be on the merits of a case, but authorities agree that such requests affect the merits of a case or may create an advantage for one party, and thus should be made by motion with proper notice to the other side, and not be allowed ex parte.

As to promptly notifying the other side of a written or oral communication with a judge, generally simultaneous notice has been suficient, but be care-ful what that means in today’s instant communication world. Is “cc’ing” opposing counsel via regular mail while faxing or emailing the document to the court adequate?2 Or, as one lawyer did, is leaving a voice mail message on opposing counsel’s work phone at 11:00 p.m. on a Sunday either prompt

or adequate notice of a hearing set up for Monday at 8:30 a.m.? Such at-tempts at manipulation are not proper, even though as may be gleaned from the above, it may require an egregious, improper contact to warrant disciplin-ary involvement. No instances of an at-torney being publicly disciplined solely for a violation of Rule 3.5(g) exist.3

Of course judges have a correspond-

ing duty to not engage in improper ex parte contacts4 and ought therefore to “cut off” any attempt by a party’s counsel to do so. Rule 8.4(f), MRPC, also prohibits attorneys from assisting or contributing to a judge’s violation of the CJC, which can create a “double whammy” situation for an attorney if the judge were to initiate an ex parte contact.

Other Rules

There are other rules in the MRPC that impact a lawyer’s dealings with the judiciary. For example, Rule 8.2(a) pro-hibits an attorney from making “a state-ment that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualiications or integrity of a judge … or of a candidate for election” to a judicial position. The standard is an objective one, and a few attorneys have been severely disciplined by the state supreme court for violations of this rule.5 While the 1st Amendment protects many statements about judges, there are disciplinary limits.

A lawyer’s obligation to report mis-conduct under Rule 8.3, MRPC, applies to judges as well as to other attorneys: In Minnesota, that will be the Board on Judicial Standards. Here too, note that judges have a corresponding duty to report lawyer misconduct.6

One perhaps minor aspect of a law-yer’s dealings with a judge can arise

“A lawyer who knows that a judge has

committed a violation of the applicable Code

of Judicial Conduct that raises a substantial

question as to the judge’s itness for ofice

shall inform the appropriate authority.”

Lawyers Dealing With Judges

0714 1-20-lmf.indd 12 7/8/14 1:51 PM

Injured clIent? let them know you can help them.

Michael W. UngerAttorney At LAw

Unger LAw office4900 IdS center

80 South 8th Street Minneapolis, Minnesota 55402

612.339.3600 • Fax: 612.339.3605 mwunger@ungerlegal.com

www.ungerlegal.com

When your clients are injured, they don’t need to look to TV ads and billboards for help.

hey need to look to you, the attorney they count on to serve them best.

So team up with an experienced injury lawyer who’s totally committed

to supporting and enhancing your trusted client relationships.

For nearly 30 years, I’ve successfully partnered with referring attorneys to provide them,

and their injured clients, with expert representation and personal service

speciically tailored to meet their individual needs.

he results speak for themselves. No catchy slogans required.

0714 1-20-lmf.indd 13 7/8/14 1:39 PM

Through the generosity of the following 2013 donors, LRAP enabled more than 40 legal aid attorneys to serve more than 10,000 low-income clients.

Leadership Award Sponsors ($7500 or more) Fredrikson & Byron Foundation

Hamline University School of Law Robins, Kaplan, Miller & Ciresi, LLP University of Minnesota Law School

University of St. Thomas School of Law William Mitchell College of Law

Platinum ($5000-$7499)

Briggs and Morgan Foundation Lindquist & Vennum, PLLP

Stinson Leonard Street Foundation

Gold ($2500-$4999) Gray Plant Mooty Foundation

Hennepin County Bar Foundation Maslon Edelman Borman & Brand, LLP

Meagher & Geer, PLLP Minnesota Chapter Federal Bar Association Minnesota Lawyers Mutual Insurance Co.

Minnesota State Bar Foundation Ramsey County Bar Foundation Seventh District Bar Association

Thomson Reuters William and Ann Hart Wernz In Memory of Bricker Lavik

Silver ($500-$2499)

Arthur, Chapman, Kettering, Smetake & Pikala, PA Cooper and Barbara Ashley

Daniel Brown Brian and Elizabeth Dillon

The Dorsey & Whitney Foundation Fifteenth District Bar Association

Fifth District Bar Association First District Bar Association

Fredrikson & Byron, PA Greene Espel, PLLP

Samuel Hanson William Hart

Henson & Efron, PA Valerie and Michael Herring

Lisa Hollingsworth and Andrew Carlson Erin Keyes

Joani and Joshua Moberg Ninth District Bar Association

Patterson, Thuente, Pederson, PA Sixth District Bar Association

Stoel Rives, LLP Twelfth District Bar Association

Xcel Energy Foundation Xcel Energy’s Office of General Counsel

Bronze ($250-$499) Anoka County Bar Association

Arneson & Geffen, PLLC J. Richard Bland Michael Brandt

Philip Byrne James Dorsey

Faegre Baker Daniels Foundation Nora Fitzpatrick

Dulce Foster Henschel Moberg Goff, PA

Alexander M. Keith Gregory and Karin Roper Kishel

Mara Koeller Craig Komanecki Daniel McDonald

Rosanne Nathanson Warren Ortland

Sixteenth District Bar Association Thirteenth District Bar Association

Michael Vraa Terry Wade

Friends (Up to $249) Lisa Agrimonti Joy Anderson James Baillie Anna Beadle Sitso Bediako Stephen Befort Joan Bibelhausen Bolt & Hoffer Law Firm John Brian Kendra Brodin Ann Burkhart Karen Burns William Burns Daniel Cheng Mark Christopherson

Mary Cincotta Stephanie Cunningham Andrew Deutsch Joseph Dixon Jr. David Dyson Stephen Eide Larry Espel Susan Falch James Forman Thomas Fraser Ann Gemmell Timothy and Susanne Goodman Mary Grau Kent Harbison Matthew Hart Charles Haynor

William Hefner Nancy Kleeman Janine Laird Carolina Lamas Maury Landsman Kimberly Larson Le Law Firm Kathleen Lohmar Exel Charles Maier Gregory Marita Tricia Matzek Bridget McCauley Nason Meier Schack, LLC Timothy Morgan Theresa Murray Hughes Joshua Ogunleye

Patricia Phill Kristy Rodd Kent Rossi School Law Center, LLC Kate Snowdon Beth Somerville Louis Thayer Jon Theobald Thomas Tinkham Michael Unger James Wilkinson III Katharine and Nicholas Woomer Deters

www.lrapmn.org

0714 1-20-lmf.indd 14 7/8/14 1:39 PM

www.mnbar.org July 2014 s Bench&Bar of Minnesota 15

ProfessionalResponsibility

in the hiring of a judicial law clerk by a law fi rm or agency. Rule 1.12, MRPC, provides that a judicial law clerk may negotiate for employment with a party or lawyer who is appearing before the clerk’s judge, even if the clerk is person-ally involved in the matter, as long as the clerk informs her judge of the nego-tiation. Once hired, the clerk may not, however, represent a party in a matter in which the clerk participated person-ally and substantially while a clerk; and the entire fi rm may be disqualifi ed unless the clerk is timely and appropri-ately screened.

Finally, coming back to judicial elections, Rule 8.2(b) requires that, “A lawyer who is a candidate for judicial offi ce shall comply with the applicable provisions of the Code of Judicial Conduct.” Thus, attorneys running for judicial offi ce need to be familiar with those campaign restric-tions that remain in force, even after recent federal court decisions have eliminated some such restrictions.7 So, those wishing to become judges this year should be aware of the cur-rent campaign rules; the rest of us must still always follow those rules regulating our dealings with judges. s

Notes1 See also, Rule 3.3(d), MRPC, which

requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the law-yer, whether or not those facts are adverse. Also note that a properly noticed motion or other proceeding to which the adverse party fails to show is not considered ex parte a lawyer certainly may argue the mer-its to the judge in such a situation.

2 Electronic fi ling, as is required in federal district court in Minnesota, helps eliminate this scenario.

3 In combination with other viola-tions, however, attorneys have been publicly disciplined. See, e.g., In re Jensen, 468 N.W.2d 541 (Minn. 1999).

4 Rule 2.9, Minnesota Code of Judi-cial Conduct (MCJC).

5 In re Graham, 453 N.W.2d 313 (Minn. 1990); In re Nathan, 671 N.W.2d 578 (Minn. 2003); In re Nett, 839 N.W.2d 716 (Minn. 2013).

6 Rule 2.15(B), MCJC.7 See, Republican Party of Minnesota v.

White, 536 U.S. 765 (2002); Wersal v. Sexton, 674 F.3d 1010 (8th Cir., 2012), cert. denied 133 S.Ct. 209 (2012).

LOOKING FOR A

CORPORATE TRUSTEE THAT’S ADVISOR FRIENDLY?

312CentralAvenueSE•Minneapolis•612-436-1424www.ubtmn.com/trust-services

D. Kevin Briggs, CSOP

Senior Vice PresidentTrust Manager

kbriggs@ubtmn.com 612-436-1440

ContactKevinformoreinformation!

0714 1-20-lmf.indd 15 7/8/14 1:39 PM

BY AMY LINDGREN

Photos by Stan Waldhauser

16 Bench&Bar of Minnesota sJuly 2014 www.mnbar.org

0714 1-20-lmf.indd 16 7/8/14 1:39 PM