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83-F-45 - Ex Parte communications to judge




Inquiry is made concerning the propriety of an attorney making comments to a Judge which are privileged, inadmissible in evidence, prejudicial to the rights of the other party and destroy the impartiality and neutrality of the Judge.

The circumstances stated in the inquiry occur in some jurisdictions when the presiding judge, prior to trial, makes inquiry as to the chances of settlement of the lawsuit. On some occasions, one of the attorneys will state the amount of the settlement offer and state that the offer has been declined. There have been instances when cases have been tried and the jury verdicts differed from the settlement offers by 50 to 100% and, on motions for additur or remittitur, the judge increased or decreased the verdicts to the exact amount of the settlement offer.

Inquiry is, therefore, made concerning the ethical propriety of an attorney, in such instances, stating the amount of the settlement offer to the trial judge.

The law favors the compromise of matters in litigation. It is against the policy of the law that the parties should be prejudiced by their 'bids for peace', or overtures, or agreements made with a view to stop litigation. These overtures of pacification are protected in the law as confidential and privileged matter which are to be encouraged and promoted. Strong v. Stewart, 56 Tenn. 137 (1872).

McCormick's Law of Evidence, Second Edition, in discussing the privilege or rule of exclusion states:

... the rule excluding evidence of offers of compromise is designed to encourage compromise ... whether it is classed as a privilege or rule of exclusion is attended by no practical consequences. Sec. 74, p. 154.

To call into play the exclusionary rule, there must be an actual dispute, or at least an apparent difference of view, between the parties as to the validity or amount of the claim. An offer to pay an admitted claim is not privileged. There is no policy of encouraging compromises of undisputed claims. They should be paid in full. If the validity of the claim and the amount due are undisputed, an offer to pay a lesser sum in settlement or to pay in installments would accordingly be admissible. Sec. 274, p. 663.

Disciplinary Rule 1-102(A)(5) provides that an attorney shall not engage in conduct that is prejudicial to the administration of justice. It is a violation of DR 1-102(A)(5) and, therefore, improper for an attorney to make comments to a judge which are privileged, inadmissible in evidence, prejudicial to the rights of the other party and destroy the impartiality and neutrality of the judge.

This 14th day of April , 1983.


F. Evans Harvill
Oscar B. Hofstetter, Jr.
William R. Willis