Thursday, September 20, 2018
A retired judge in Iowa recently defended himself in a hearing of a contested order by saying, "I didn't write this thing." A review of Judge Edward Jacobson's rulings found that he had failed to notify the parties in 13 cases where he had signed proposed rulings written by lawyers (presumably the lawyer involved in the litigation). Judge Jacobson said he believed it was common practice to have the lawyers in the case write the orders.
I think the judge is correct - it is common practice for the court to ask one of the attorneys to write orders at various stages of any case. The difference is that this is usually common knowledge to the parties involved in the case, and opposing counsel is consulted before submission of the proposed order, or at some stage before the order becomes final. The request for the order writing is usually done in the presence of both attorneys, so all parties are fully aware of the plan. This was not done in several of Judge Jacobson's cases.
This practice raises a question though, should this be the practice at all? Why is it that the work emerging from a judge's chambers is primarily drafted by a lawyer involved in the litigation? Isn't a judge who does this just shifting her workload to the lawyer who will presumably bill the client for the time spent drafting an order? Or is it proper and more expedient for the lawyers in the case to do it themselves? They are better acquainted with the intricacies of the issues that must be addressed in any order, and would be ready to critique a judge-drafted order that missed important items anyway, which would slow down the process.
At first glance, having the lawyer in the case write the order seems to undermine the ethics of an unbiased system. Each lawyer will have an interest in writing an order most favorable for their desired outcome, and in fact these orders are frequently (always?) written by the prevailing side in the dispute. A prevailing (and unethical) lawyer may try to sneak in some traps or pitfalls for the other side, but it should at least be assumed that the order will include language that will advantage the winner. Without review by the adversary, an order like this does present ethical problems and the process should not be condoned.
However, if we agree that an efficient judicious process carries weight, it may be appropriate for the practice of lawyer-written orders to continue with certain conditions. First, opposing counsel must be fully aware of and have the opportunity to participate in the process and make objections. Second, the judge who will sign the order must use due diligence and use her position of neutrality to evaluate every order for accuracy and legality - even if no issues have been raised by the side who did not write the order. Finally, the judge must be prepared to take ownership of the order and at no time try to pass off responsibility for the effect of a poorly written order.
One final admonishment is necessary too for the lawyers involved in these situations: Always consult opposing counsel before submitting a proposed order to the court. This will save time in the case that the order is contested, and more importantly, this will have the effect of bolstering collegially and trust in the bar. Even if the judge doesn't direct a lawyer to share the proposed order with the other side, a lawyer should remember her obligations to a fairly administered justice system. That includes giving the other side a chance to be informed and an opportunity to be heard in the final decision.