Common Ways Lawyers Assist

Rule 8.4(f) names no particular kind of judicial misconduct. It states two requirements and applies them to whatever the judge is doing: the lawyer must knowingly assist, and the conduct assisted must violate the applicable rules of judicial conduct or other law.¹ Because the paragraph is that general, a student must recognize the fact patterns that fit it, and three account for most of the cases. The first is a private communication with the judge about a pending case. The second is money or a gift that the judicial code bars the judge from accepting or handling in a certain way. The third is a judge who should step aside from a case and keeps sitting.

Each pattern applies the same two elements in the same order. The analysis starts with the judge, because without a judicial violation the lawyer has nothing to assist, and it asks which provision of the judicial code or other law the judge broke. Only then does it turn to the lawyer, asking what the lawyer knew and what the lawyer did to further the violation.

These patterns recur because the judge seldom completes the violation alone. A one-sided conversation needs a lawyer on the other end, an improper payment needs someone to make it, and a disqualified judge stays on a case more easily when a lawyer who knows the reason helps keep the judge there. Within each subsection, three questions organize the material: what makes the judge's conduct a violation, which exceptions remove the violation, and which facts show that the lawyer both knew of the problem and helped bring it about. The same lawyer behavior can be innocent or complicit depending on the answers.

Ex Parte Communications

The violation lawyers most often help complete is the ex parte communication: a contact with the judge about a pending case that leaves out the other side. On the judge's side, Model Code Rule 2.9 provides that a judge "shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of other parties or their lawyers, concerning a pending or impending matter."² A lawyer who takes part in such a communication supplies the other end of the exchange, and that participation is the assistance paragraph (f) describes. Examiners favor this pattern because both halves are easy to see on the facts, which leaves the question free to test the knowledge element and the exceptions.

The prohibition rests on a premise of the adversarial system: each party is entitled to be heard by a neutral judge who has heard both sides. An ex parte communication is ordinarily forbidden because it destroys procedural fairness and undermines public confidence in the impartiality of the judiciary.³ The harm runs two ways. The judge hears argument that the other side has had no chance to answer, and the absent side cannot correct a misstatement because it does not know the conversation took place. An outsider also cannot tell a harmless chat from a decisive one, which is why the rule asks nothing about the lawyer's purpose: a well-meant contact damages the appearance of a fair process as much as an ill-meant one.

Lawyers face a parallel prohibition of their own. Model Rule 3.5(b) bars a lawyer from communicating ex parte with a judge unless authorized to do so by law or a court order.⁴ The two rules cover the same call but ask different questions. The lawyer's own rule is violated by the communication itself, and it does not ask whether the lawyer knew the judge was breaking anything. Paragraph (f) requires that the lawyer know the facts that make the judge's conduct a violation, such as that the matter is pending and the other side absent, and that the lawyer help carry the contact out. One private call can therefore support two charges, and a lawyer who innocently joins a one-sided call may escape paragraph (f) and still violate the lawyer's own rule.

Neither rule depends on who started the contact. A judge who raises a pending case with a lawyer has initiated a prohibited communication, and the lawyer who answers has joined it.

Two features of that scene are the ones examiners test. The friendly setting and the absence of any plan to sway the judge change nothing, because the knowledge paragraph (f) requires is knowledge of the facts, not a purpose to influence. The judge's having started the exchange also gives the lawyer no defense, since the lawyer could have declined to discuss the motion.

The prohibition speaks of communications, and that word covers writing as well as talk. A brief, letter, or proposed order sent to chambers on a pending matter and withheld from the other side puts one party's position before the judge alone, and a judge who reads and weighs it has considered a communication made outside the other parties' presence.⁵ Service on the opposing party removes the ex parte character of a written submission, so a stem that says only that a lawyer sent something to the judge is incomplete until it says whether the other side received a copy.

The exceptions are narrow, and each one removes the judge's violation, which leaves the lawyer nothing to assist. The first limit lies in the subject matter: Rule 2.9 reaches only communications concerning a pending or impending matter.⁶

Ministerial contacts about scheduling or administration are the familiar exception, and the protection ends where the talk reaches the merits. A fourth exception is a catchall for communications "expressly authorized by law."⁷ The standard example is an application for an emergency restraining order, where a lawyer may be permitted to appear before a judge without the opposing party.⁸ A judge who hears such an application does nothing the code forbids, so paragraph (f) has no violation to attach to.

That exception carries a price on the lawyer's side. Model Rule 3.3(d) provides that "[i]n an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse."⁹ The person who would ordinarily present the opposing view is missing, so the judge depends on the lawyer's disclosures to give the absent party fair consideration. Comment 14 puts the duty in terms of material facts the lawyer knows and reasonably believes necessary to an informed decision.¹⁰ The duty has one limit: the lawyer need not reveal information that is actually privileged, meaning information the lawyer reasonably believes would not be subject to discovery or subpoena because of an evidentiary privilege such as the attorney-client privilege.¹¹

One-sided fact gathering by the judge's own staff is a further variation. A judge's staff is an extension of the judge, so an ex parte communication that would be improper for the judge is improper for the staff.¹² In Price Bros. v. Philadelphia Gear Corp. the appellant alleged that the district judge had sent his law clerk to gather evidence, which would require disqualification. The Sixth Circuit remanded to determine whether that had happened, observing that "not every ex parte communication to the trial court requires reversal" but that the allegation was serious enough to need an answer.¹³ A clerk's private gathering of evidence would put facts before the judge that no party has had a chance to test. A lawyer who suggested or arranged such an errand without notice to the other side would be helping complete the judge's violation.

The Sixth Circuit reached the opposite result on other facts. It upheld a refusal to disqualify a judge who "explained to Plaintiffs' counsel the ministerial nature of these ex parte discussions before they took place" and "personally extended to Plaintiffs' counsel an invitation to attend all of these meetings."¹⁴ The difference between the two decisions is whether the other side was shut out or invited in. Both concern disqualification rather than discipline, and the discussion of failure to recuse below returns to them. For this rule, the lesson is that advance notice and an open invitation take away the one-sided character on which the violation depends.

Campaign Money and Gifts

Money fits paragraph (f) as easily as words do, because a judge's acceptance or handling of money can itself violate the judicial code or other law, and a lawyer who knowingly supplies it assists that violation.¹⁷ Judges who face elections must raise campaign funds, and the judicial code permits that only through defined channels. The code also keeps judges from taking personal benefit from people who may appear before them. A payment to a judge is therefore neither automatically proper nor automatically improper. Three things decide it: how the money is routed, whether it stays within the code's limits, and what the lawyer knows when sending it. The order of analysis stays the same. Decide first whether the judge's acceptance or handling of the money breaks the code, then ask what the lawyer knew and did.

The ordinary contribution is the baseline, and it shows why most money from lawyers to judges raises no problem under paragraph (f). A judge who stands for election may accept support through a campaign committee, in a reasonable amount, within the period the code allows for raising money, with donors disclosed as the rules require.

The usual exam error is to treat the lawyer's regular appearances before the judge, or the bare fact that money changed hands, as the violation. Neither is. The violation lies in how the judge may use the money, and the code's first limit is a ban on spending campaign contributions for the private benefit of the judge or anyone else. The reason lies in what a contribution is supposed to be. Money given to a campaign supports the judge's candidacy, and the public tolerates it because it is spent on the campaign. Money that ends up paying the judge's bills is a personal gift from someone who may appear in the judge's courtroom, and the political label only makes it harder to recognize as one. A lawyer who knows the money is meant for the judge's private use, and supplies it, hands the judge the means of the violation.

The code's remaining limits protect the appearance of impartiality, which is the purpose of the whole structure. Large contributions suggest that the judge may favor the donor in later rulings, and money handed over far from any election looks more like payment for rulings than like political support. A committee, reasonable amounts, limits on timing, and public disclosure let a judge who must run for office raise money without inviting the suspicion that rulings are for sale, because each limit closes off one way for a payment to look like a purchase. A lawyer who knowingly bypasses those limits removes the safeguards that make campaign finance tolerable for a judiciary.

Gifts and reimbursements follow the same logic. The code limits what a judge may accept from lawyers and others whose interests may come before the court, permits certain items such as ordinary social hospitality and reasonable reimbursement of expenses for permitted activities, and requires the judge to report what the judge receives. Each requirement gives the lawyer's conduct a measure. A lawyer who reimburses a judge's travel to speak at a bar seminar, with the judge listing the reimbursement on the required report, has helped with nothing improper. A lawyer who pays for a judge's family vacation while the lawyer's own case is before that judge, and asks that the payment go unreported, has funded the violation. Paragraph (f) also reaches violations of "other law," so a payment meant to buy a ruling, which breaks the bribery statutes, falls within it even where no provision of the judicial code is needed.¹⁸

Failure to Recuse

The third pattern arises when the judge's violation is presiding at all. A judge who hears a case the judicial code requires the judge to leave engages in conduct that violates the code, and a lawyer who knowingly helps the judge stay assists that violation.²⁰ Recusal, the judge's stepping aside, is the code's response when a judge cannot be trusted to look neutral; disqualification describes the same result from the viewpoint of the party who asks for it. The analysis keeps its usual order. Decide first whether the code required this judge to step aside, and only then ask what the lawyer knew and what the lawyer did to keep the judge on the case.

The general standard is that a judge must disqualify in any proceeding in which the judge's impartiality might reasonably be questioned. The test is objective because of a problem of proof: no one can show what a judge privately feels toward a relative or a donor, so a rule demanding proof of actual partiality would almost never be met. Asking how the situation looks to a reasonable observer replaces an unanswerable question about the judge's state of mind with a question the facts can answer. That is also why one family or financial fact can matter in one case and not in another. It matters when it would lead an observer to doubt the judge, and the farther the connection lies from the parties and the issues, the less doubt it raises.

Courts apply the standard case by case, as the ex parte decisions above show. In Price Bros. an allegation that the judge had used a law clerk to gather evidence was serious enough to require a remand, even though not every ex parte communication to a trial court requires reversal. In the other Sixth Circuit decision, the refusal to disqualify stood because the judge had explained the ministerial nature of the meetings in advance and invited counsel to attend them all.²¹ These decisions ask whether a judge must step aside, and none disciplines a lawyer. They show which kinds of facts make a judge's continued sitting a problem, and so which kinds of facts a lawyer can help hide.

Beyond the general standard, the judicial code lists situations in which disqualification is required. Each supplies a fact that a lawyer may know, sometimes better than the judge does. The grounds most often tested are these:

personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts in dispute in the proceeding;
earlier participation in the matter, as a lawyer, a government official, or a judge at another stage;
a spouse or close relative of the judge who is a party, acts as a lawyer in the proceeding, or has a significant interest the case could affect;
an economic interest, held by the judge or the judge's family, in the subject matter or in a party; and
campaign contributions from a party or a party's lawyer that reach the amount the jurisdiction sets.

The last ground ties this pattern to the preceding one. A lawyer whose own gifts to the judge's campaign cross the line has helped create a ground for disqualification, and a lawyer who then presses the judge to keep the case helps the judge sit in violation. The relative ground draws the most exam attention, and it comes with a working shortcut: unless the relationship is very remote, the safest answer is that the judge should recuse.

Each feature of that scene does work. Disqualification rules are objective because impartiality cannot be proved, but an objective trigger functions only if the facts reach the party who can move to disqualify the judge. A lawyer who hides the tie disables that safeguard and lets the judge's violation continue to the lawyer's advantage, in a setting where the other side has no chance to answer. The concealment also supplies the knowledge element, since knowledge may be inferred from circumstances, and hiding a tie or urging a judge to stay is hard to explain except by awareness that the tie matters. A lawyer who has no idea that the judge's brother owns stock in the opposing party knows nothing that makes the judge's sitting improper, so the knowledge element fails even though the judge should step aside.

Does every family connection between lawyer and judge make the lawyer a participant in misconduct? It does not, and a student who answers yes will miss the cases in which there is no violation to assist.

The two scenes differ in how close the tie is and in what the lawyer did with it, and those are the two facts to check in an exam stem. First ask whether the relationship, or the money, statement, or past role involved, is one the code treats as requiring recusal. Then ask whether the lawyer knew of it and acted to keep the judge on the case by hiding it or pressing the judge to stay. When the closeness of the relationship is truly uncertain, the shortcut resolves the first question toward recusal. When the tie is very remote, the first question is answered no, and the lawyer's conduct does not matter under this paragraph.