83-F-45 - Ex Parte communications to judge

FORMAL ETHICS OPINION 83-F-45


Inquiry is made concerning the propriety of an attorney making comments
to a Judge which are privileged, inadmissible in evidence, prejudicial to
the rights of the other party and destroy the impartiality and neutrality of
the Judge.


The circumstances stated in the inquiry occur in some jurisdictions when the presiding
judge, prior to trial, makes inquiry as to the chances of settlement of the lawsuit. On
some occasions, one of the attorneys will state the amount of the settlement offer and
state that the offer has been declined. There have been instances when cases have been
tried and the jury verdicts differed from the settlement offers by 50 to 100% and, on
motions for additur or remittitur, the judge increased or decreased the verdicts to the
exact amount of the settlement offer.
Inquiry is, therefore, made concerning the ethical propriety of an attorney, in such
instances, stating the amount of the settlement offer to the trial judge.
The law favors the compromise of matters in litigation. It
is against the policy of the law that the parties should be
prejudiced by their 'bids for peace', or overtures, or
agreements made with a view to stop litigation. These
overtures of pacification are protected in the law as
confidential and privileged matter which are to be
encouraged and promoted. Strong v. Stewart, 56 Tenn. 137
(1872).
McCormick's Law of Evidence, Second Edition, in discussing the privilege or rule of
exclusion states:
... the rule excluding evidence of offers of compromise is
designed to encourage compromise ... whether it is classed
as a privilege or rule of exclusion is attended by no
practical consequences. Sec. 74, p. 154.
To call into play the exclusionary rule, there must be an
actual dispute, or at least an apparent difference of view,
between the parties as to the validity or amount of the
claim. An offer to pay an admitted claim is not privileged.
There is no policy of encouraging compromises of
undisputed claims. They should be paid in full. If the
validity of the claim and the amount due are undisputed, an
offer to pay a lesser sum in settlement or to pay in
installments would accordingly be admissible. Sec. 274, p.
663.
Disciplinary Rule 1-102(A)(5) provides that an attorney shall not engage in conduct that
is prejudicial to the administration of justice.
It is a violation of DR 1-102(A)(5) and, therefore, improper for an attorney to make
comments to a judge which are privileged, inadmissible in evidence, prejudicial to the
rights of the other party and destroy the impartiality and neutrality of the judge.
This 14th day of April , 1983.
ETHICS COMMITTEE:
F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis
APPROVED AND ADOPTED BY THE BOARD