Commonwealth of Virginia Judicial Ethics Advisory Committee Opinion 00-4

1. May a circuit court judge have ex parte communications with a probation officer preparing a presentence report for a case being tried by that judge?
   
   Answer: No. Any discussion of facts, factors, or opinions that might tend to influence the court's determination of the appropriate disposition or sentence to be imposed should take place "on the record" in the presence of the defendant, his counsel, and the Commonwealth's Attorney with the probation officer being available for cross examination. Communication limited strictly to administrative matters or inquiry as to purely legal questions is not improper.
    
2. May an improper communication be remedied?
   
   Answer: Improper communications may cause legal as well as ethical problems. As a matter of ethics, to remedy an improper ex parte communication, a judge should disclose promptly to all parties all such oral and written communications on the record, offer the defendant an opportunity to respond, and direct the person who caused the improper communication to cease such communications. If a judge becomes biased or prejudiced, recusal is mandated by Canon 3E.
   
   Compliance with the above ethical considerations, however, may not be sufficient as a matter of law if the defendant does not waive his absence at the ex parte contact.1
   The Committee expressly declines to address what, if anything, is sufficient as a matter of law to cure that defect, as such is beyond the scope of the Committee's jurisdiction.
    
3. After sentencing may a judge have ex parte communications with the probation officer concerning matters relating to terms and conditions of probation
   
   Answer: Not if the case is still pending or impending unless the communications are expressly within the exceptions of Canons 3B(7)(a) and 3B(7)(e). Virginia Code § 53.1-145 (4) authorizes adult probation officers to arrest a probationer under certain circumstances by direction of the court pending a hearing. A judge may receive a written ex parte communication from a probation officer in order to determine if exigent circumstances exist to issue a bench warrant or capias because of an alleged probation violation. 2  The written communication will provide a record for review. The judge should be mindful of the due process violation that the ex parte prohibition is intended to avoid. The Committee believes that no ethical violation occurs under this procedure. The Committee expresses no opinion as to whether the practice violates any statutory or constitutional requirement.

Canon 3B(7) proscribes all ex parte communications by a judge concerning a pending case unless specifically within the five exceptions enumerated:

1. Where circumstances require, ex parte communications for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits are authorized; provided:
   1. The judge reasonable believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
   2. The judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
2. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.
3. A judge may consult with law clerks whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.
4. A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to settle matters pending before the judge.
5. A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

The Commentary cautions the judge against "...the possibility of prejudice or the appearance of such when communicating with a probation officer or a similarly situated person without the involvement of all parties," and requires disclosure of all such communication in pending cases.

Furthermore, in criminal felony cases, the defendant in person, not just his attorney, is cloaked with the personal right to be present at each stage of the case and to have an official record made of the proceeding.

Virginia Code § 19.2-165 provides for verbatim recording of the evidence and incidents of trial. Virginia Code § 19.2-259 requires that a person tried for a felony shall be personally present during the trial. Virginia Code § 19.2-299 provides for the investigation and report (Presentence Report) of those matters critical to assisting the judge to determine the appropriate disposition or sentence to be imposed. Safeguards are put in place for due process protection, i.e., the report is to be in writing to counsel and made available in advance for review by the defendant, the judge and the prosecutor, and the probation officer is required to be present in court, subject to cross examination in a hearing on the record with all necessary parties present.

In short, "during the trial" as provided by Virginia Code § 19.2-259 means every stage of the trial from arraignment to sentencing when anything is to be done which may affect the defendant's interest. Jones v. Commonwealth, 227 Va. 425 (1984).

For example, in Brittingham v. Commonwealth, 10 Va. App. 530 (1990), the court held that in camera testimony without a court reporter was improper and reversible error even though the prosecutor and defense counsel were present and were permitted to cross examine the witness. The proceeding was an "incident of trial" where something could be done to affect the defendant's interest.

The Committee is of the opinion that those matters, which by statute are to be investigated by the probation officer, are the essence of the type of information which should not be communicated privately and ex parte with the trial judge pending final adjudication of the case. Such communications are prohibited by law and by Canon 3B(7) and are not within its exceptions.

Canons 3E and 3F regarding disqualification and remittal of disqualification provide:

E. Disqualification.

(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; ...

F. Remittal of Disqualification. A judge who may be disqualified by the terms of Section 3E may ask, or have the clerk of court ask, the parties and their lawyers to consider, out of the presence of the judge, whether to waive disqualification. If following disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. Written evidence of the agreement shall be incorporated in the record of the proceeding.

While Canon 3B(7), dealing with ex parte communications, does not address how to remedy such an improper communication, the case law appears to dictate the approach described in Issue 2 3 and is consonant with the provisions of Canon 3B(7)(a)(ii).

If the defendant seeks the judge's recusal, the judge should consider these changes in the disqualification and remittal process under the new Canons 3E and 3F. Previously, all types of disqualification could be waived. Now under Canon 3F, bias and prejudice concerning a party is not remittable. In addition, the consideration of the remittal by the attorneys and parties is to be done out of the judge's presence. Therefore, the judge should recess if the consideration occurs during the course of a hearing.

Although not new, two additional provisions should be observed. First, even though Virginia Code § 19.2-165 provides for a verbatim recording of the evidence and incidents of trial, Canon 3F requires that a remittal of disqualification be reduced to writing and signed by each attorney and each party. "On the record" through the recording and transcript is not sufficient to meet the requirements of Canon 3F. Second, while disqualification is required under certain circumstances, the acceptance of the remittal of the disqualification is entirely within the judge's discretion in order to insure a fair trial.

The Committee is mindful of the special relationship that exists between the courts and the probation officers. While the probation officers are employed by the executive branch, most are appointed by the courts. The powers and duties of adult probation and parole officers are partially fixed by Virginia Code § 53.1-145. Juvenile probation officers' duties are fixed by Virginia Code § 16.1-237. This statute may also apply to circuit court cases on appeal from the Juvenile and Domestic Relations District Court.

Canons of Judicial Conduct, Canons 3B(7)(a) and (e), 3E, and 3F.

Utah Ethics Advisory Opinion 97-4.

Washington Judicial Conduct Advisory Opinion 97-7.

Virginia Code §§ 16.1-237, 19.2-165, 19.2-259, 19.2-299, and 53.1-145.

Brittingham v. Commonwealth, 10 Va. App. 530 (1990).

Jones v. Commonwealth, 227 Va. 425 (1984).

McElhanon v. Hing, 728 P. 2d 273 (Ariz. 1986), cert. den. 481 U.S. 1030.

Palmer v. Commonwealth, 143 Va. 592 (1925).

Smyth v. White, 195 Va. 169 (1953).

State v. Perkins, 686 P. 2d 1248 (Ariz. 1984).

Shaman, J., et al, Judicial Conduct and Ethics, 3d. Ed., § 5.08.

FOOTNOTES
1 Va. Code §§ 19.2-259 and 19.2-299. Palmer v. Commonwealth, 143 Va. 592, 605 (1925); Jones v. Commonwealth, 227 Va. 425, 430-431 (1984); Smyth v. White, 195 Va. 169, 173-174 (1953).

2 Washington Judicial Conduct Advisory Opinion No. 97-7, Utah Ethics Advisory Opinion 97-4.

3 J. Shaman, et al, Judicial Conduct and Ethics 3rd Ed., § 5.08; State v. Perkins, 686 P. 2d 1248 (Ariz. 1984); McElhanon v. Hing, 728 P. 2d 273 (Ariz. 1986), cert. den., 481 U.S. 103