COLUMN > Ethics & the Law
BY MARK J. FUCILE
The law goes farther than requiring an impartial judge; it also requires that the judge appear to be impartial.
—State v. Post, 118 Wn.2d 596, 618 (1992)11 The full citation to our opening quote is State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, amended, 837 P.2d 599 (1992) (citation omitted).
When it comes to the law regulating the legal system, most lawyers understandably focus primarily on the Rules of Professional Conduct governing their own duties. Many lawyers are less conversant with the Code of Judicial Conduct (CJC) governing judges. That may be because most lawyers do not typically confront professional issues that intersect with the CJC. There are two areas, however, where lawyers do occasionally touch on the CJC and related statutory law: ex parte communications and judicial disqualification.22 This is not intended to be an exclusive list. RPC 1.12, for example, addresses conflict issues when a judge leaves the bench and joins a law firm. In this column, we’ll look at both. Before we do, two qualifiers are in order.
First, as the title implies, we’ll focus on these topics from the lawyer’s perspective. It is important to underscore, however, that the CJC is not simply a “judges’ version” of the RPCs. The language above quoted from State v. Post speaks to the uniquely different role that judges play in our legal system. Lawyers represent private and public clients as advocates. Judges, by contrast, have the difficult job of parsing the respective positions and either deciding issues outright or guiding jurors in that process. Reflecting those different roles, the CJC has a much different “look and feel” than the RPCs. The rules in the CJC are fewer in number than those in the RPCs and in many respects more general—reflecting judges’ roles as neutrals in an adversary system.33 The Washington CJC was last updated comprehensively in 2011. See generally Matter of Keenan, 199 Wn.2d 87, 93, 502 P.2d 1271 (2022) (summarizing the history of the Washington CJC). The Washington CJC is patterned generally on its ABA Model Code counterpart and is enforced through the Commission on Judicial Conduct—with the Supreme Court as the final arbiter. Id. The CJC, together with many other resources appliable to the judiciary, is available on the Commission’s website at http://www.cjc.state.wa.us. The ABA Model Code of Judicial Conduct, in turn, is available on the ABA’s website at http://www.americanbar.org. Washington RPC 8.5(c) addresses the interplay between the RPC and the CJC and generally defers to the latter.
Second, we’ll focus on Washington state court judges.44 The Washington CJC includes an “application” preface discussing when and to what extent it applies to part-time and pro tem judges. The Washington CJC does not apply to either state administrative law judges or tribal court judges. Federal district and appellate court judges are governed by the Code of Conduct for U.S. Judges. The federal code is generally similar to its ABA Model Code counterpart with some modifications reflecting, for example, the fact that federal judges do not run for office.55 The federal code is available on the U.S. courts’ website at http://www.uscourts.gov.
Ex Parte Communications
The “lawyer” and “judge” versions of the respective rules on ex parte communication largely mirror each other66 See In re Marriage of Clark, 2021 WL 3929316 at *6 (Wn. App. Sept. 2, 2021) (unpublished) (noting parallel nature of the two rules); see also RPC 3.5, cmt. 1 (cross-referencing the CJC).:
RPC 3.5(b) provides:
A lawyer shall not:
…
(b) communicate ex parte with … [ a judge] … during the proceeding unless authorized to do so by law or court order[.]77 Communicating with a judge’s administrative staff is not ordinarily considered an ex parte communication with the judge unless the communication with the judge’s staff is intended to “convey substantive information to the judge from counsel and notice is not given to all parties.” In re Marriage of Clark, supra note 6, 2021 WL 3929316 at *7. By contrast, communicating ex parte with a judge’s law clerk on the substantive aspects of a pending proceeding is likely to be considered an ex parte communication with the judge. See Restatement (Third) of the Law Governing Lawyers (2000) (Restatement) § 113, cmt. d.
CJC 2.9(A), in turn, reads, in relevant part:
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 or their lawyers, concerning a pending or impending matter, before that judge’s court[.]88 CJC 2.9 includes a number of exceptions, including communications for administrative purposes that do not address the substantive aspects of a proceeding. See generally State v. Contreras-Rebollar, 4 Wn. App. 2d 222, 421 P.3d 509 (2018) (surveying the “administrative exception”). Similarly, submission of working copies of materials filed or otherwise in the record is not generally considered an ex parte communication. See In re Turner, 2018 WL 1920072 at *6 (Wn. App. Apr. 24, 2018) (unpublished).
Both rules are intended to assure the fundamental fairness of proceedings by keeping all parties involved in substantive communications about a proceeding.99 RPC 3.5 is titled: “Impartiality and Decorum of the Tribunal.” Canon 2, which provides overarching guidance for the rules in that section of the CJC, is also framed in terms of “impartiality.” The comments to the analogous section of the Restatement (Third) of the Law Governing Lawyers note in this regard: “Ex parte communication with a judicial official before whom a matter is pending violates the right of the opposing party to a fair hearing and may constitute a violation of the due process rights of the absent party.”1010 Restatement, supra note 7, § 113, cmt. b. CJC 2.9(B) requires a judge who receives an unauthorized ex parte communication to notify the other parties.1111 This column focuses on ex parte communications. Judges, however, are also generally precluded from conducting independent factual investigation by CJC 2.9(C). See generally ABA Formal Op. 478 (2017) (discussing constraints on judges doing independent factual research on the internet). Similarly, trial judges are generally prohibited by Comment 5 to CJC 2.9 from informally consulting with appellate judges in the same jurisdiction about cases before them. See generally State v. Jenks, 12 Wn. App. 2d 588, 459 P.3d 389 (2020) (discussing this point in the unpublished portion of the decision).
The parallel ex parte rules clearly apply to traditional contacts such as in-person encounters or surface mail when those communications involve substantive matters pending before the judge involved. In re Carmick, 146 Wn.2d 582, 48 P.3d 311 (2002), for example, involved a lawyer disciplined under RPC 3.5(b) for appearing in court without giving required notice to opposing counsel.1212 Depending on the circumstances, statutes and court rules may also require notice to opposing parties of court proceedings and the failure to follow such statutes and court rules may violate RPC 3.4(c), which prohibits “knowingly disobey[ing] an obligation under the rules of a tribunal[.]” See In re Ferguson, 170 Wn.2d 916, 932-36, 246 P.3d 1236 (2011) (discussing the relationship between RPCs 3.4(c) and 3.5(b)). In re McGrath, 174 Wn.2d 813, 280 P.3d 1091 (2012), and a companion decision involving the same lawyer, 178 Wn.2d 280, 308 P.3d 615 (2013), in turn, involved an initial suspension and later disbarment for, among other things, writing substantive letters to judges ex parte in violation of RPC 3.5(b).
The ex parte rules apply with equal measure to electronic communications. Like their letter counterparts, emails with a judge copying all counsel are not generally considered “ex parte.”1313 See generally In re Marriage of Clark, supra note 6, 2021 WL 3929316 at *7 (surveying this point). Similarly, electronic social media contacts between a judge and a lawyer are not generally considered “ex parte” if they do not concern substantive matters in a proceeding before the judge.1414 See generally ABA Formal Op. 462 (2013) (discussing judges’ use of electronic social media). For example, social media contacts between a lawyer and a judge who were law school classmates about an upcoming class reunion would not ordinarily violate either the “lawyer” or the “judge” versions of the ex parte rules.1515 Id. at 1 (“All of a judge’s social media contacts, however made and in whatever context, … are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary[.]’”). By contrast, private electronic contacts between the same two over a pending motion in a case in which the lawyer was appearing before the judge would violate those same rules.1616 Id. at 2 (“A judge must also take care to avoid comments and interactions that may be interpreted as ex parte communications concerning pending or impending matters in violation of Rule 2.9(A)[.]”).
Judicial Disqualification
The term “judicial disqualification” is used in two distinct senses in Washington state courts. The first, which is sometimes also referred to as recusal,1717 See, e.g., Skagit County v. Waldal, 163 Wn. App. 284, 287, 261 P.3d 164 (2011) (noting that “recusal” and “disqualification” are used interchangeably in Washington practice). If a judge’s failure to recuse results in a tribunal that is not impartial, constitutional due process considerations may also arise. See generally Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (summarizing principle); Tatham v. Rogers, 170 Wn. App. 76, 90-92, 283 P.3d 583 (2012) (same, citing Caperton). is based on CJC 2.11 and focuses on situations “in which the judge’s impartiality might reasonably be questioned[.]” The second, which was formerly called an “affidavit of prejudice,” is a statutory procedure at the trial court level under RCW 4.12.050 that is functionally similar to a peremptory challenge of a juror.
CJC 2.11 includes a non-exclusive list of circumstances when judges should recuse themselves, or, in the alternative, when parties may file motions to disqualify them.1818 See also CJC Canon 3 (addressing conflicts between a judge’s personal interests and judicial duties); ABA Formal Op. 488 (2019) (discussing judges’ personal relationships as basis for disclosure or disqualification). For example, CJC 2.11(A)(1) requires recusal when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”1919 See, e.g., Sherman v. State, 128 Wn.2d 164, 203-06, 905 P.2d 355 (1995), amended, 1996 WL 137107 (Jan. 31, 1996) (remanding to another judge after the judge involved had conducted his own investigation of some facts potentially relevant to the case on remand). This facet of judicial disqualification is often called “the appearance of fairness doctrine.”2020 See generally State v. Gentry, 183 Wn.2d 749, 761-62, 356 P.3d 714 (2015) (surveying doctrine). As the name implies, actual prejudice is not the standard.2121 Id. Rather, the test is an objective one framed around the idea that to preserve public confidence in the judicial process a judge should be recused if there is a reasonable basis to question the judge’s impartiality.2222 Id. In instances not involving actual bias under CJC 2.11(A)(1), a judge may disclose the circumstances that might otherwise give rise to disqualification—such as the judge’s spouse is an officer of a corporate party—and the parties may waive the perceived conflict under CJC 2.11(C). While theoretically broad, the standard does not ordinarily include de minimus economic ties or remote former employment.2323 See, e.g., Kok v. Tacoma School Dist. No. 10, 179 Wn. App. 10, 25, 317 P.3d 481 (2013) (de minimus economic connection); Buechler v. Wenatchee Valley College, 174 Wn. App. 141, 161, 298 P.3d 110 (2013) (remote employment). A party generally waives disqualification if, having learned of the potential grounds, the party chooses not to promptly pursue disqualification.2424 See generally In re Jones, 182 Wn.2d 17, 42-43, 338 P.3d 842 (2014) (discussing waiver of judicial disqualification in the sense of estoppel); Tatham v. Rogers, supra note 17, 170 Wn. App. at 96 (“‘[A] litigant who proceeds to trial knowing of potential bias by the trial court waives his objection and cannot challenge the court’s qualifications on appeal.’”) (citation omitted).
RCW 4.12.050, although titled “disqualification,” is, as noted earlier, closer conceptually to a peremptory strike of a potential juror.2525 See State v. Spokane County District Court, 198 Wn.2d 1, 11, 491 P.3d 119 (2021) (describing the statutory process as a “right to peremptory removal of a judge”). See also RCW 4.12.040 (outlining associated internal procedures at the courts involved). The statute allows a party to remove an assigned judge simply by filing a “notice of disqualification” as long as the judge has not yet made a discretionary ruling in the case.2626 This process was formerly known as an “affidavit of prejudice.” RCW 4.12.050 was amended in 2017 and the amendments eliminated that nomenclature. See generally Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 959, 453 P.3d 992 (2019) (discussing both the amendments and the former terminology). The Washington Supreme Court has emphasized that this is a right granted by statute2727 State and local court rules also regulate implementation of the statute. See, e.g., CR 40(f); Pierce County Superior Court LR 40(f). and that neither actual prejudice nor substantiation of any prejudice is required.2828 State v. Spokane County District Court, supra note 25, 198 Wn.2d at 11. The broad sweep of the right, however, is tempered by the requirement that it be exercised before the judge involved has made a discretionary ruling (subject to a handful of exceptions in RCW 4.12.050(2) such as permitting an agreed continuance). A party may only exercise this right once in a case under RCW 4.12.050(1)(d).2929 See Douglas J. Ende, 14 Wash. Prac., Civil Procedure § 10.9 (rev. 3d ed. 2021) (discussing ambiguity in decisional law over application when there is more than one party on a side).
Summing Up
Although most lawyers do not interact with the CJC often, the judicial rule on ex parte communications parallels lawyers’ corresponding duties under the RPC. Similarly, while judicial disqualification is the exception rather than the norm, the distinct time limitation under RCW 4.12.050 makes it imperative that litigators know how this statutory right works.
NOTES
1. The full citation to our opening quote is State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, amended, 837 P.2d 599 (1992) (citation omitted).
2. This is not intended to be an exclusive list. RPC 1.12, for example, addresses conflict issues when a judge leaves the bench and joins a law firm.
3. The Washington CJC was last updated comprehensively in 2011. See generally Matter of Keenan, 199 Wn.2d 87, 93, 502 P.2d 1271 (2022) (summarizing the history of the Washington CJC). The Washington CJC is patterned generally on its ABA Model Code counterpart and is enforced through the Commission on Judicial Conduct—with the Supreme Court as the final arbiter. Id. The CJC, together with many other resources appliable to the judiciary, is available on the Commission’s website at http://www.cjc.state.wa.us. The ABA Model Code of Judicial Conduct, in turn, is available on the ABA’s website at http://www.americanbar.org. Washington RPC 8.5(c) addresses the interplay between the RPC and the CJC and generally defers to the latter.
4. The Washington CJC includes an “application” preface discussing when and to what extent it applies to part-time and pro tem judges. The Washington CJC does not apply to either state administrative law judges or tribal court judges.
5. The federal code is available on the U.S. courts’ website at www.uscourts.gov.
6. See In re Marriage of Clark, 2021 WL 3929316 at *6 (Wn. App. Sept. 2, 2021) (unpublished) (noting parallel nature of the two rules); see also RPC 3.5, cmt. 1 (cross-referencing the CJC).
7. Communicating with a judge’s administrative staff is not ordinarily considered an ex parte communication with the judge unless the communication with the judge’s staff is intended to “convey substantive information to the judge from counsel and notice is not given to all parties.” In re Marriage of Clark, supra note 6, 2021 WL 3929316 at *7. By contrast, communicating ex parte with a judge’s law clerk on the substantive aspects of a pending proceeding is likely to be considered an ex parte communication with the judge. See Restatement (Third) of the Law Governing Lawyers (2000) (Restatement) § 113, cmt. d.
8. CJC 2.9 includes a number of exceptions, including communications for administrative purposes that do not address the substantive aspects of a proceeding. See generally State v. Contreras-Rebollar, 4 Wn. App. 2d 222, 421 P.3d 509 (2018) (surveying the “administrative exception”). Similarly, submission of working copies of materials filed or otherwise in the record is not generally considered an ex parte communication. See In re Turner, 2018 WL 1920072 at *6 (Wn. App. Apr. 24, 2018) (unpublished).
9. RPC 3.5 is titled: “Impartiality and Decorum of the Tribunal.” Canon 2, which provides overarching guidance for the rules in that section of the CJC, is also framed in terms of “impartiality.”
10. Restatement, supra note 7, § 113, cmt. b.
11. This column focuses on ex parte communications. Judges, however, are also generally precluded from conducting independent factual investigation by CJC 2.9(C). See generally ABA Formal Op. 478 (2017) (discussing constraints on judges doing independent factual research on the internet). Similarly, trial judges are generally prohibited by Comment 5 to CJC 2.9 from informally consulting with appellate judges in the same jurisdiction about cases before them. See generally State v. Jenks, 12 Wn. App. 2d 588, 459 P.3d 389 (2020) (discussing this point in the unpublished portion of the decision).
12. Depending on the circumstances, statutes and court rules may also require notice to opposing parties of court proceedings and the failure to follow such statutes and court rules may violate RPC 3.4(c), which prohibits “knowingly disobey[ing] an obligation under the rules of a tribunal[.]” See In re Ferguson, 170 Wn.2d 916, 932-36, 246 P.3d 1236 (2011) (discussing the relationship between RPCs 3.4(c) and 3.5(b)).
13. See generally In re Marriage of Clark, supra note 6, 2021 WL 3929316 at *7 (surveying this point).
14. See generally ABA Formal Op. 462 (2013) (discussing judges’ use of electronic social media).
15. Id. at 1 (“All of a judge’s social media contacts, however made and in whatever context, … are governed by the requirement that judges must at all times act in a manner ‘that promotes public confidence in the independence, integrity, and impartiality of the judiciary[.]’”).
16. Id. at 2 (“A judge must also take care to avoid comments and interactions that may be interpreted as ex parte communications concerning pending or impending matters in violation of Rule 2.9(A)[.]”).
17. See, e.g., Skagit County v. Waldal, 163 Wn. App. 284, 287, 261 P.3d 164 (2011) (noting that “recusal” and “disqualification” are used interchangeably in Washington practice). If a judge’s failure to recuse results in a tribunal that is not impartial, constitutional due process considerations may also arise. See generally Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (summarizing principle); Tatham v. Rogers, 170 Wn. App. 76, 90-92, 283 P.3d 583 (2012) (same, citing Caperton).
18. See also CJC Canon 3 (addressing conflicts between a judge’s personal interests and judicial duties); ABA Formal Op. 488 (2019) (discussing judges’ personal relationships as basis for disclosure or disqualification).
19. See, e.g., Sherman v. State, 128 Wn.2d 164, 203-06, 905 P.2d 355 (1995), amended, 1996 WL 137107 (Jan. 31, 1996) (remanding to another judge after the judge involved had conducted his own investigation of some facts potentially relevant to the case on remand).
20. See generally State v. Gentry, 183 Wn.2d 749, 761-62, 356 P.3d 714 (2015) (surveying doctrine).
21. Id.
22. Id. In instances not involving actual bias under CJC 2.11(A)(1), a judge may disclose the circumstances that might otherwise give rise to disqualification—such as the judge’s spouse is an officer of a corporate party—and the parties may waive the perceived conflict under CJC 2.11(C).
23. See, e.g., Kok v. Tacoma School Dist. No. 10, 179 Wn. App. 10, 25, 317 P.3d 481 (2013) (de minimus economic connection); Buechler v. Wenatchee Valley College, 174 Wn. App. 141, 161, 298 P.3d 110 (2013) (remote employment).
24. See generally In re Jones, 182 Wn.2d 17, 42-43, 338 P.3d 842 (2014) (discussing waiver of judicial disqualification in the sense of estoppel); Tatham v. Rogers, supra note 17, 170 Wn. App. at 96 (“‘[A] litigant who proceeds to trial knowing of potential bias by the trial court waives his objection and cannot challenge the court’s qualifications on appeal.’”) (citation omitted).
25. See State v. Spokane County District Court, 198 Wn.2d 1, 11, 491 P.3d 119 (2021) (describing the statutory process as a “right to peremptory removal of a judge”). See also RCW 4.12.040 (outlining associated internal procedures at the courts involved).
26. This process was formerly known as an “affidavit of prejudice.” RCW 4.12.050 was amended in 2017 and the amendments eliminated that nomenclature. See generally Godfrey v. Ste. Michelle Wine Estates Ltd., 194 Wn.2d 957, 959, 453 P.3d 992 (2019) (discussing both the amendments and the former terminology).
27. State and local court rules also regulate implementation of the statute. See, e.g., CR 40(f); Pierce County Superior Court LR 40(f).
28. State v. Spokane County District Court, supra note 25, 198 Wn.2d at 11.
29. See Douglas J. Ende, 14 Wash. Prac., Civil Procedure § 10.9 (rev. 3d ed. 2021) (discussing ambiguity in decisional law over application when there is more than one party on a side).