State of Washington

Ethics Advisory Committee

Question

Are there ethical implications if a judicial officer, at a juvenile court detention review, orders detention, subject to release by a juvenile probation officer on conditions and the judicial officer subsequently approves the conditions ex parte? If so, would a local court rule establishing a presumption of waiver of counsel’s presence (unless formal objection is made) bring the procedure into compliance with the Code of Judicial Conduct?

The juvenile court has traditionally used the option, when considering detention review, of detaining a youth (under appropriate legal criteria), giving the juvenile probation counselor “authority to release with conditions”. This authority has been exercised without further judicial review or court order. In an attempt to limit liability and limit discretion of probation counselors, the court is considering other alternatives. One option, where additional investigation by the probation officer and setting of conditions may justify release, is to detain and require that the court approve any release conditions imposed later by the probation counselor. To alleviate the need for additional court hearings, and to keep the procedure as similar as possible to the status quo, the court would like the ability to approve the release conditions ex parte.

Answer

CJC Canon 3(A)(4) prohibits a judicial officer from engaging in ex parte or other communication concerning a pending or impending case except as authorized by law. If the court were to adopt a local court rule setting out the procedure by which conditions of release are submitted by the juvenile probation counselor to the judicial officer, the concern about ex parte contact between the judicial officer and the juvenile probation officer is removed because the contact is authorized by law; that is, by local court rule. Therefore such conduct does not violate the Code of Judicial Conduct.

Opinion 01-08

10/31/2001