W.D.Mich.: No REP in overheard unethical ex parte communication with a judge

An ex parte communication between lawyers and a judge overheard on an open phone line of a part of a call that hadn’t been completely disconnected has no reasonable expectation of privacy. Ideally, there woud be a reasonable expectation of privacy in such conversations. Because Rule 3.5 bars ex parte communications, however, there is no privacy as a matter of public policy. Also, the office door was open. Thus, the motion to suppress in a 1983 case against the lawyers for a violation of ECPA is denied. HLV v. Page & Stewart, 2018 U.S. Dist. LEXIS 55273 (W.D. Mich. Mar. 28, 2018):

Finally, the Court does not believe that society is prepared to recognize an expectation of privacy in grossly inappropriate ex parte communications between judicial officers and officers of the court. Michigan Rule of Professional Conduct 3.5 bars lawyers from improperly influencing or communicating ex parte with judges. This rule exists to ensure public confidence in the integrity and impartiality of the judiciary. As a matter of public policy, society will not accept that an expectation of privacy in ex parte communications is reasonable. Every lawyer is aware of their obligation to avoid such communications, and of the rationale for the rule. Any belief that such communications are private is unreasonable.

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