Formal Opinion 26. Client Discussing Case With Judge (1953)

You have requested an opinion as to the ethical conduct of an attorney representing a party in a Superior Court action in either:

(1) sending a party to discuss the matter privately in chambers with the judge who handled the case; or

(2) knowingly permitting his client to discuss the matter privately with the judge in chambers without informing opposing counsel of the fact that his client was going to discuss the matter privately with the judge.

There are two canons touching on the matter, which are set out as follows:

Canon 3: "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 misconstruction of motive and should be avoided. A lawyer should not communicate or argue privately with the judge as to the merits of a pending case, and he deserves rebuke and denunciation for any device or attempt to gain from the 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 proper foundation for cordial personal and official relations between Bench and Bar."

Canon 16: "A lawyer should use his best efforts to restrain and to prevent his client from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards court, judicial officers, jurors, witnesses, and suitors. If a client persists in such wrongdoing, the lawyer should terminate their relation."

It would be a violation of Canon 3 for a lawyer to communicate directly with a judge, in the absence of his opponent, concerning a matter then pending before the judge.

A lawyer cannot send his client or permit his client to do what he cannot himself do.

A majority of the committee are of the opinion that a violation of the code would clearly exist in both of the situations you stated in your letter.

[See RPC 3.5, 8.4]