Ex Parte Contacts as Influence

Ex Parte Contacts as Influence

Rule 8.4(e) makes it misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.”¹ The most tempting promise of that kind is private access: a word with the person who will decide a pending matter, by telephone or across a dinner table, with the other side none the wiser. Such a communication is ex parte, made to the decision maker outside the formal proceeding and without the other participants. This section explains why the adjudicative process condemns these contacts, which outsiders they bind, and what a decision maker must do when someone attempts one.

The authority comes from litigation over a pending adjudication involving the air traffic controllers' union, PATCO, in which officials and outsiders approached members of an independent federal agency. That litigation applied the Administrative Procedure Act (APA) and was not a lawyer-discipline proceeding. It shows why private influence on a decision maker is intolerable and how subtle such influence can be, and it does not itself state Rule 8.4 doctrine.

The Ex Parte Prohibition

A formal agency adjudication is decided on one body of material. Section 556(e) of the APA provides that “[t]he transcript of testimony and exhibits, together with all papers and requests filed in the proceeding, constitutes the exclusive record for decision.”² The requirement protects the litigants, as the same principle does in a federal trial, and ex parte communications can easily undercut it.³ A private word to the decision maker brings in material the other side has never seen and cannot answer, and the record no longer shows what moved the decision. The consequences for a party who tries are severe: after an opportunity to show cause, the offending party’s claim may be denied or dismissed.⁴

The leading illustration is Professional Air Traffic Controllers Organization v. Federal Labor Relations Authority. While the agency was weighing whether to decertify PATCO, Albert Shanker, a union officer, arranged a dinner with Member Applewhaite, one of the decision makers. As the conversation turned to the discipline appropriate for a striking union like PATCO, the dinner became a direct attempt to influence a pending case, and the court condemned it.⁵

The dinner lacked the usual aggravating features. Shanker did not threaten Applewhaite, did not say that he spoke for top AFL-CIO officials, did not make a promise of any kind, and did not learn how Applewhaite meant to vote.⁶ The court condemned the approach anyway, calling it “a mockery of justice to even suggest that judges or other decisionmakers may be properly approached on the merits of a case during the pendency of an adjudication.”⁷ Because the wrong lies in the route and not in what the visitor says, an exam stem that lacks a threat or an offer has not removed the violation.

The court stated the rule in terms that bind everyone: “It is simply unacceptable behavior for any person directly to attempt to influence the decision of a judicial officer in a pending case outside of the formal, public proceedings.” That holds for the general public, for interested persons, and for the formal parties, and it governs administrative adjudications as well as cases in Article III courts.⁸ The reasoning is structural. Adjudications remain viable only while the decision-making process keeps its integrity, and that integrity cannot be protected if direct attempts to influence decision makers are condoned.⁹ Once a decision maker can be approached privately on the merits, every party has a reason to try, and the party that refuses loses ground to the party that does.

A second contact in the same litigation involved no invitation and perhaps no design. Gordon, who counted as an interested person outside the agency, was present when a staff member and Applewhaite discussed a legal memorandum prepared for the agency members on a critical legal issue in the PATCO case. A separate opinion objected to dismissing the incident as “innocuous” and “inadvertent.” Gordon’s arrival at the exchange may have been inadvertent, it reasoned, but a fifteen-minute discussion of the memorandum’s substance is not a mere passing reference, and his remaining and actively participating were hardly accidental. By the terms of the APA, his participation was improper.¹⁰ The opinion refused to suggest that an interested party who does not deliberately place himself in position for an ex parte contact is relieved of all responsibility “promptly to terminate his involvement if circumstances take an unexpectedly improper turn.”¹¹ The dinner and the office conversation began differently, one as a planned approach and the other as an accident, and each became a forbidden contact when the talk reached the merits.

Neither contact cost the agency its decision. The court of appeals concluded that no party was prejudiced and imposed no sanctions,¹² and Chief Judge Robinson agreed that the ex parte communications had not affected the members’ ultimate decision and so did not call for a remand.¹³ Refusing to disturb the decision answers a remedy question, whether the contacts tainted the result. It does not answer whether the contacts were proper, and on that question the court condemned Shanker’s approach and a separate opinion condemned Gordon’s participation. A contact that changes no vote is still a forbidden contact.

Paragraph (e) applies the lesson to the lawyer’s words. A lawyer who tells a client, or anyone else, that the decision maker can be reached privately claims an ability to influence an official improperly, and the rule reaches the statement itself.¹⁴

The merits themselves stay open to full argument through channels that preserve the record.

The lawyer in that scene and Shanker want the decision maker to hear the same thing. What separates them is the channel: the brief and the hearing put the argument into the record, where the other side can answer it, and the dinner kept it out. An exam stem on this topic therefore turns on whether a communication about the merits of a pending matter reached the decision maker through the record or around it.

Interested Persons and Status Calls

The ban on private approaches reaches only as far as the people it covers, and the PATCO court had to say how far that is. The APA’s ex parte provision, 5 U.S.C. § 557(d), speaks of an “interested person,” and Shanker implicitly claimed that he had no greater interest in the case than any member of the general public.¹⁸ The court answered with the definition in the House and Senate Reports: the term covers “any individual or other person with an interest in the agency proceeding that is greater than the general interest the public as a whole may have,” and “[t]he interest need not be monetary, nor need a person be a party to, or intervenor in, the agency proceeding.”¹⁹

The legislative history shows that the breadth was chosen deliberately. The Senate Committee on Government Operations deleted a provision in the original bill that would have exempted ex parte communications involving persons who were neither parties, intervenors, nor government officials.²⁰ The reason is easy to see. A rule confined to formal parties would be simple to evade, because a party barred from approaching the decision maker could ask a friendly outsider to make the approach, and the decision maker would hear the same private argument.

Applied to Shanker, the test looks at what he did and who he was, and not at any formal role. His actions, as well as his union office, belied his implicit claim, and it made no difference that the AFL-CIO had appeared as amicus or that he did not know it.²¹ A concurring opinion joined that conclusion, calling Shanker, “beyond cavil,” an interested party and condemning his behavior as “an egregious violation of the APA.”²²

The label “interested person” controls the statute’s reach, but the court stated the underlying norm more widely. It is unacceptable for any person directly to attempt to influence a judicial officer in a pending case outside the formal, public proceedings, and that is true for the general public, for interested persons, and for the formal parties alike.²³ Someone whose interest is no greater than the public’s therefore falls outside the statutory term and still has no license to lobby the decision maker in private. The question for an exam stem is whether the outsider’s stake exceeds the public’s, and a stem that stresses the outsider’s lack of party status, or the absence of any money at stake, has not answered it.

Timing questions are a routine part of dealing with any agency, so a caller who labels a call a status inquiry invites the assumption that it is harmless. The concurring opinion in the PATCO litigation shows that the label does not settle the question. Lovell, the Undersecretary of Labor, called Haughton, the Chairman of the agency and a thirty-year acquaintance, about the pending decision. After Haughton replied that he hoped the opinion would be forthcoming very soon, Lovell said, “I hope there won’t be anything embarrassing in it,” and Haughton answered, “Well, I may be dissenting.”²⁶

Because of that last remark, the concurrence concluded, the call could not be treated as an inoffensive status inquiry. It relied on the legislative history of the Government in the Sunshine Act, which warns against purported status requests that “in effect amount to an indirect or subtle effort to influence the substantive outcome of the proceedings.” Lovell’s remark was not even indirect or subtle, because it told the chairman that the Undersecretary cared about what the decision would contain as well as when it would arrive.²⁷ A thirty-year acquaintance explained why Haughton took the call but gave no license for the impropriety that followed. The concurrence accepted the finding that the call had no influence on the vote, since Haughton’s position had essentially solidified before he spoke with Lovell, and still treated the call as improper. If executive officials show no more respect for the inviolability of formal adjudication than this, it warned, the designation “independent” risks becoming an empty title.²⁸

The same opinion treated a request about speed as a communication on the merits. The FAA tried to have the PATCO matter handled more expeditiously than normal, and the Secretary insisted that the case was very important to the Government and so had to be dealt with rapidly. That insistence was a communication on the merits of the question whether to expedite, because Congress chose the phrase “communication relevant to the merits” to denote a concept broader than a communication bearing on “fact[s] in issue.”²⁹ Agencies, like courts, promulgate rules of practice that let outsiders communicate with decision makers in proper fashion, and those channels are quite adequate for any information that could legitimately be sought from or given to the people who will judge the case.³⁰ A genuine request about timing has an ordinary route, and a direct, private approach that bypasses it suggests, at the minimum, a deplorable indifference toward safeguarding the purity of the formal adjudicatory process.

The concurrence gave two reasons why such a call harms the process even when it moves no vote. Regardless of the caller’s intent, the recipient could feel it as political pressure, and regardless of its effect, the public could perceive it as political pressure, so the integrity of the process suffers either way.³¹ The court of appeals’ own disposition was milder. It treated the Secretary’s telephone call as potentially improper, relied on the decision maker’s good-faith belief that no wrongdoing had occurred and on the lack of prejudice, and imposed no sanction.³² That outcome again goes to the remedy and leaves open whether the call was proper.

The analysis carries over to a lawyer’s pitch to a client. A lawyer who tells a client that a quick status call will let the lawyer remind the chairman how much the client matters has stated or implied an ability to influence a decision maker improperly, and paragraph (e) reaches that statement when it is made, before any call is placed.³³

Decision Makers' Duty to Resist

The decision maker’s own conduct matters as much as the visitor’s, and the PATCO dinner shows what the law requires of someone who is approached. The court condemned Shanker for seeking out Member Applewhaite and then asked a separate question about Applewhaite. It held that he committed no impropriety by accepting the invitation, and it faulted him because, when the conversation reached the pending case, he did not end it.³⁶ The duty therefore has two parts with different reaches. It leaves the decision maker’s social life intact, and it requires prompt action when that social life becomes a channel for advocacy on a pending matter.

The refusal to condemn the invitation reflects a realistic view of decision makers. A judge, the court of appeals said, “must have neighbors, friends and acquaintances, business and social relations, and be a part of his day and generation.”³⁷ When Shanker called on September 21, Applewhaite did not know why he wanted the dinner, so he had no reason to reject the invitation.³⁸ A rule against every meal with a friend who holds views about the agency’s business would push decision makers into isolation, and the wrong lies in using a meal to argue a case.

The invitation stayed harmless only until the subject changed. As the conversation turned to the discipline appropriate for a striking union like PATCO, Applewhaite should have promptly terminated the discussion, and if Shanker had persisted in discussing his views of the case, Applewhaite should have told him in no uncertain terms that such behavior was inappropriate. He did neither.³⁹ The court added that this failure to steer the conversation away from the PATCO case eventually led to the special evidentiary hearing in the litigation.⁴⁰ The decision maker is the one person at the table with both the knowledge that the contact is improper and the standing to end it, and the absent parties cannot object.

Nothing in the findings about Shanker’s conduct excused the silence. He made no threat, no promise, and no claim to speak for top AFL-CIO officials, and he never learned how Applewhaite would vote, yet the court still called the failure to steer the conversation away an indiscretion.⁴¹ It also found that no party was prejudiced and imposed no sanction,⁴² so whether the decision maker acted properly and whether the decision was tainted remain separate questions. A stem that stresses the absence of threats, promises, or any revealed vote has not answered whether the decision maker did what was required.

The examiner and Applewhaite accepted the same kind of invitation from a friend whose purpose they did not know, and each reached the same moment when the topic became a pending case. The examiner shut the channel and Applewhaite let it run. That single variable is what the court treated as decisive.

A concurring opinion put the same facts more sharply. It would allocate blame to the one acting as a judicial officer who, with a solemn responsibility to preserve both the fact and the appearance of complete impartiality, “first subjected himself to a palpable risk of contamination, and then made no effort to arrest forbidden advocacy when it came.”⁴³ The phrase “first subjected himself” reaches back to the invitation itself, where the court found no fault, but both opinions agree that silence in the face of advocacy was the failure.

The judicial-conduct rules draw the same line in their own terms. Rule 2.4(a) declares that “[a] judge shall not be swayed by public clamor or fear of criticism,” and Rule 2.4(b) adds that “[a] judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.” The comment explains that an independent judiciary requires judges to decide cases according to facts and law, without regard to whether laws or litigants are popular with the public, the media, government officials, or the judge’s friends or family.⁴⁴ The wording tracks the PATCO majority. Relationships are permitted, and the rule forbids letting them influence the decision. These rules speak to judges and serve here as a counterpart, but Applewhaite was an agency member deciding an adjudication, and the court applied the norm against private attempts to influence a decision maker to administrative adjudications as fully as to cases in Article III courts.⁴⁵

A Florida case shows what happens when a relationship does reach the decision. In Inquiry concerning a Judge, Gridley, the Florida Supreme Court reprimanded a judge for allowing a personal relationship to influence his judicial conduct. After the judge struck up a personal correspondence with a convicted defendant and others associated with the defendant, he converted the defendant’s sentence from first to second degree murder.⁴⁶ There the relationship produced a changed ruling, whereas the friendship in PATCO supplied the occasion for an approach the decision maker failed to stop.

The decision maker’s side of the problem also explains why a claim of friendship with an official is dangerous for a lawyer to make. A lawyer who tells a client that a close relationship with the decision maker will carry the matter claims an influence that the decision maker is forbidden to allow. Rule 8.4(e) makes that claim misconduct when it is made, even though a decision maker who accepts a purely social meal with the same person has done nothing wrong.⁴⁷