By Dubs Ari Tanner Herschlip

Are you concerned about the reputation of our profession? Do you want to know the best way to handle difficult situations? Are you frustrated with the practice of law? The Councils of Law, created by the KCBA Professionalism Committee, address just these kinds of issues.

The Councils of Law promote civility and professionalism by creating an opportunity for members of the bench and bar to gather on a regular and informal basis for social interaction and professional discourse on subjects of interest to the legal profession.

The Councils of Law started in 2002. After initial success, the Councils encountered some challenges, but are back to overcome those challenges. The KCBA Professionalism Committee gathered feedback from the membership and proposed a new framework for the Councils.

There is now a set time and place for each meeting. The meetings are

held on the second Thursday of every month from 5:00-6:00 p.m. at Williams, Kastner & Gibbs PLLC, 601 Union St., Suite 4100, Seattle (March 9, April 13, May 11, June 8, July 13, August 10 and September 14) .

The Councils will begin with a half-hour meet-and-greet. Judges will be in attendance. An ethics CLE will follow for the next half-hour (we will apply for 0.5 ethics CLE credit). Then, the Professionalism Committee will meet at 6 p.m. to discuss the issues we all must face, alone or together. You are invited.

In January, King County Superior Court Judge John Erlick offered his insight into the pitfalls arising from ex parte contact in the electronic age under RPC 3.5 and CJC 3.A.4. Prohibited ex parte contact is serious and has warranted remands and reversals of criminal convictions. Unfortunately, the RPCs do not define “ex parte contact.”

The Supreme Court in State v. Watson, instructed us to look to the plain and ordinary meaning in Black’s Law Dictionary. RPC 3.5 clearly prohibits communications between counsel and the court when opposing counsel is not present in the court. However, this definition assumes that there is a “proceeding,” an opposing counsel/ party and a communication between counsel and the judge.

What if there is no proceeding in progress? What if opposing counsel has withdrawn? Additionally, State v. Juarez provides that court staff may be regarded as an agent of the judge for purposes of this rule. Thus, we may expand our definition of prohibited ex parte contact to include communications made by one party and done at the instance of and for the benefit of that one party without notice to the other party and without an opportunity to be heard.

Does this help us understand our duties in day-to-day situations? What if, after a hearing against opposing counsel, who has left the court, we notice that the judge gave the incorrect date when signing the order? Can we call that to the attention of the bailiff? What if, given the same hypothetical, the cause number in the caption was incorrect? Can the court correct the caption?

What if the motion were a motion for replevin and the cause number was in the body of the order, then can it be changed? Do we need to call opposing counsel? What if the hearing was regarding a parenting plan and the order mistakenly omitted Thursday visitations? Is this a substantive change that requires us to re-note the hearing?

There is nothing like hearing the preferred practice from a judge. How about email communication with the court? Many attorneys email requests for calendar dates when scheduling motions for summary judgment. This is okay. But an email scheduling a motion with substantive information related to a case, other than dates and case identifiers, is inappropriate. Also, if scheduling communications are made via telephone and the caller attempts to include substantive information about the case or argument, bailiffs will instruct the caller that they are not permitted to discuss the case.

Thus, the court is working on a way to avoid emails that attempt substantive argument or discussion of a case, absent permission from the court and copying of opposing counsel/parties. One suggestion is for attorneys to always copy opposing counsel/party with all communications to the court. If it is a simple administrative task such as checking the court’s schedule for setting a motion, counsel may choose to have its staff telephone the court. Finally, the court asks that attorneys train their staff on these same rules.

Council meetings have been successful, in part, due to the generosity of the host, Williams, Kastner & Gibbs.