Ethics Hotline & Opinions

Ethics Docket No. 1990-07

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-07

Duty to Report Communication Between Client and Judge’s Clerk After Trial

 

Your inquiry describes the following factual situation. You are currently involved as counsel to a litigant in a divorce proceeding which was tried in Court and is currently being held sub curia. You advised that your client attended a social function, which was also attended by the Law Clerk of the Judge who holds the matter sub curia. The Judge's Law Clerk made inquiries of your client regarding issues that were raised at trial. The Clerk further indicated that the Judge had already written his Opinion in the case but did not divulge the contents thereof. Your inquiry poses three questions: (1) Do you have an obligation to take any action as a result of the information received from your client? (2) If you are required to take action, may you do so without your client's permission? (3) If your client declines to give you permission, what action may you take?

Canon 2 of the Maryland Code of Judicial Conduct provides in part that: "A Judge should behave, should require staff and court officials subject to the Judge's directions and control to observe the standards of fidelity and diligence that apply to the Judge." You have not indicated, nor does the Committee assume, that the Judge involved in the case was aware of the activities of the Clerk outlined in your inquiry. It would appear that there is no requirement under the Maryland Code of Judicial Conduct or the Rules of Professional Conduct applicable to lawyers that would require you to take any action as a result of the information you have received from your client.

Rule 1.6 of the Rules of Professional Conduct states that: "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation …" Should your client allow you to communicate with the Court regarding your client's communications with the Judge's Law Clerk, you would certainly have a right to do so. Absent explicit authorization from your client, it is the opinion of the Committee that you would be precluded from making any disclosures to the Court regarding the activities of the Judge's Law Clerk.

 

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