State of Washington

Ethics Advisory Committee

Question

May a judicial officer read and respond to a letter or other written communication from an unrepresented criminal defendant asking the court to quash a bench warrant, modify conditions of release, rescind a no-contact order, release bail or bond, grant a continuance, modify a sentence, grant early release from custody or take any other action with regard to a matter which is either pending or on which the court is supervising probation?

How would the answer differ were the defendant represented by counsel?

How would the answer differ were the communication written by the defendant’s spouse, parent, or other relative or friend?

What may the court clerk do with regard to such communications to which a judge may not properly respond?

Answer

CJC Canon 2(A) provides in part that judges should avoid impropriety and the appearance of impropriety. Canon 3 requires judges to perform the duties of their office impartially and diligently. Subsection 3(A)(4) provides in part that judges should neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.

A judicial officer may read and respond to a letter or other written communications from an unrepresented criminal defendant so long as copies of the letter or other written communication and the judicial officer’s response are provided to all parties in the case as soon as possible. The prohibition against ex parte communication is designed to make sure that all parties know what matters a court will be considering in a case and that all parties have a right to be heard. CJC Canon 3(A)(4) provides in part that judges should accord every person who is legally interested in a proceeding, or that person’s lawyer, full right to be heard. The prohibition against ex parte communications should be considered in this context.

Copies of any correspondence should be sent to all counsel of record and any parties unrepresented by counsel as soon as possible. Each judicial officer should determine the nature of the response required which in some cases may only be a form letter advising the defendant that the judicial officer cannot respond to the questions posed and advises the defendant to contact a lawyer or schedule a hearing in accordance with the court rules and give the required notice and opportunity to be heard to all parties. All the correspondence should be retained in the court file.

The judicial officer may respond to a defendant represented by counsel by advising the defendant to contact his or her lawyer. Counsel should be furnished copies of both the defendant’s letter and the judicial officer’s response. Copies of all correspondence should be kept in the case file.

The judicial officer is not under any obligation to respond to a defendant’s spouse, parent, or other relative or friend because those persons do not have a legal interest in the proceeding. The judicial officer may direct court staff to send a form response advising those individuals that the court will not discuss a case with a nonparty in the proceeding.

A judicial officer may direct the court clerk to send out a form letter to a defendant advising the defendant that the court will not act upon any information or request made in the letter and that the defendant should contact counsel immediately and/or schedule a hearing in accordance with court rules. Counsel, if any, should be provided copies of all correspondence and copies should be retained in the court file.

Opinion 02-14

07/25/2002