State of Washington

Ethics Advisory Committee

Question

If a judicial officer may not have pre-trial contact with alleged victims (regardless of the charge), may those who are under the judicial officer’s direct control and supervision do so without violating CJC Canon 3(B)(2) and Canon 3(A)(4)? If this pre-trial contact is a prohibited ex parte communication, would it constitute an action that is beyond the scope of the probation officer’s normal duties? Would the phone calls made and letters sent to alleged victims of domestic violence create the appearance of a preference for domestic violence cases when the same response is not offered to alleged victims of other crimes? Could the problem be remedied by making calls and sending letters to the alleged victims of all crimes when the defendant is placed on monitored pre-trial supervision?

Are there any ethical concerns for the district court judges, who are contractually responsible for supervising probation officers assigned to other courts and the municipal court judges who, by contract, have delegated to the district court their responsibility to supervise the probation officers working for their own courts? Has an impermissible delegation of judicial authority taken place by virtue of these probation services contracts?

The county district court has a probation department whose officers are under the direct control and supervision of the district court judges. The department also provides probation services to many local municipalities by contract. The contract provides that the district court judges are responsible for supervising probation officers assigned to the municipalities. Other county probation contracts have similar language.

District and municipal court judicial officers frequently place defendants under the supervision of the court’s probation department for monitoring of their pre-trial conditions of release. Pre-trial probation monitoring is most often utilized for monitoring defendants charged with domestic violence crimes or for driving while under the influence of intoxicants. In the context of domestic violence crimes, the pre-trial conditions typically include a prohibition against the defendant’s possession of firearms, as well as law abiding behavior.

When assigned to monitor a pretrial domestic violence case, the probation officer will contact the alleged victim(s) by telephone and letter. The letter advises the recipient that the defendant’s behavior is being monitored and invites the alleged victim(s) to contact the department with any questions or concerns that he/she may have, or to report violations of the supervision. A copy of the court’s order is included with the letter. The letter also provides a list of community resources to which the victim can turn for free support services, such as victim support groups.

For heightened pre-trial supervision of alleged domestic violence offenders, certain enhancements are being considered. It has been suggested that the probation officer should take a more active role in disarming those defendants who have been prohibited by the court from possessing a firearm or deadly weapon as a condition of their pre-trial release. When supervising such defendants, the probation officer will be tasked with developing a better relationship with the victim(s), not only to facilitate the monitoring of the weapons prohibition condition, but to encourage victims to utilize the probation department as a personal resource. The probation officer will emphasize the weapon prohibition to the victim(s) in the correspondence sent, and in all domestic violence cases, the letter will be followed up with a personal telephone call to the victim(s). During the call, the victim will be made aware that probation is another resource to which he or she may turn for assistance.

Answer

The Code of Judicial Conduct Canon 3(A)(4) provides in relevant part that judicial officers are prohibited from engaging in ex parte or other communications concerning a pending or impending case except as authorized by law. CJC Canon 3(B)(2) provides that judicial officers should require their staff and court officials subject to their direction and control to observe the same standards of fidelity and diligence that apply to them. ARLJ 11.1 provides in relevant part that a court may establish a probation department and that the method of providing these services shall be established by the presiding judge of the court to meet the specific needs of the court. ARLJ 11.2 provides in part that core services of the probation department are to conduct pre/post-sentence investigations with face-to-face interviews and extensive research that includes but is not limited to criminal history, social and economic needs, community resource needs, counseling/treatment needs, work history, family and employer support, and complete written pre/post-sentence reports, which includes sentencing recommendations to the court.

ARLJ 11 permits a court to establish a probation department with ARLJ 11.1 specifying the method of providing these services shall be established by the presiding judge to meet the specific needs of the court. CJC Canon 3(A)(4) and ARLJ 11, when read together, permit a court to establish a probation department and permit contact between probation department employees and alleged defendants and victims. The nature of the crime may dictate the types of services the probation department provides in order to preserve public order and safety (ARLJ 11.1). Regardless of the level of services approved for use in domestic violence cases or other types of crimes, probation staff should be counseled that their behavior should not create an appearance of partiality in a particular type of case or to an alleged victim. Pretrial probation department contact with domestic violence victims should be contacts intended to facilitate enforcement of the court’s order(s). The probation department should not hold itself out as a resource or advocate for the victim in any other regard.

In order to address concerns about ex parte communications between a judicial officer and an employee of the probation office before they arise, the court should establish a protocol in which the judicial officer’s role in the supervision of the probation officers and the office is established. The protocol should, among other things, advise defendants that if they wish to be released with monitored pre-trial probation: 1) they must agree to be supervised by and to have communications with probation officers; and 2) there are certain procedures established on how and to whom the probation officer communicates problems that occur (such as, there is no ex parte communication with the judicial officer).

The municipalities’ contracts with the probation department for services do not introduce any additional ethical concerns for the court supervising the department. Because the contract with the municipalities provides that district court judges retain the responsibility for supervising the probation department employees, they have not delegated that responsibility inappropriately. The presiding judge, in accordance with ARLJ 11.1, should make clear to the probation department employees that they are county judicial court employees, even while performing probation functions for the municipalities, and they are to furnish probation services in the same manner as they do in cases in the district court.

Also see Opinion 01-8.

Opinion 08-06

08/13/2008

Amended 10/22/2008