Informal Opinion 98-9
May 12, 1998

The Ethics Advisory Committee has been asked by a district court judge whether a trial court judge has an ethical right or obligation to communicate with an appellate court concerning alleged misstatements made by counsel before the appellate court.

As an example, the judge describes a situation in which a petition for rehearing was filed with an appellate court. The petition for rehearing claims that the trial court took judicial notice of certain facts during the trial proceedings. The trial court judge did not take judicial notice of those facts. The judge wonders whether there would be a right or an obligation to inform the appellate court of the misstatement. As another example, a question arises as to a trial judge's responsibility when a party on appeal claims that off-the-record discussions were had and the judge does not recall such discussions or does not believe that the discussions were as represented by counsel.

Canon 3B(7) states that "[n]o communication respecting a pending or impending proceeding shall occur between the trial judge and an appellate court unless a copy of any written communication or the substance of any oral communication is provided to all parties." This language in the Utah Code of Judicial Conduct is not part of the black letter ABA model code. The language originates from the commentary to the model code. The language in Canon 3B(7) must be read in light of Canon 2A, which requires impartiality, and Canon 3B(9), which states that "[a] judge shall not, while a proceeding is pending or impending in any court, make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing." When read together, these Canons suggest the circumstances under which a communication between a trial judge and appellate court may occur.

In other jurisdictions, judges have been admonished against communicating with an appellate court when the communication would exhibit partiality. See Harrington v. Indiana, 584 N.E.2d 558, 561 (Ind. 1992). This is the primary concern. A communication with an appellate court may not, on its face, exhibit partiality. However, the effect and perception of any such communication must be considered. Any communication with an appellate court could be considered favorable to one side and in opposition to another, even if that is not the intention. Disclosure to the parties, as required by Canon 3B(7), provides an opportunity for scrutiny and response, but does not obviate the problem.

The adversarial system relies on the attorneys and parties to clarify the record on appeal. Unsolicited communication from a trial judge is not ordinarily necessary and undermines the neutrality of the bench. There may be circumstances when an appellate court requires additional information from the trial judge. Canon 3B(7) allows communication in that circumstance, as long as all communications are provided to the parties and placed in the record. The Committee believes problems of this sort are avoided, or at least greatly minimized, if a trial court judge does not communicate with an appellate court concerning a pending or impending proceeding unless requested by the appellate court, with the requirements of Canon 3B(7) being followed. Such communication should be formal rather than casual. For example, the appellate court should not telephone or even write a letter asking for additional information. Rather, the appellate court should, by order, remand for the entry of additional findings, entry of a supplemental order, or resolution of an outstanding motion. The trial court's response should likewise be in the form of an order, memorandum of decision, or other appropriate document.