변호사와 판사 간의 일방적 의사교환 금지원칙에관한 미국법조윤리 연구

Abstract

American judicial system is based upon the adversary system. The system assumes that truth will be found only when two advocates present their own version of the fact to a neutral and impartial decision-maker. That assumption requires that the adversaries’ arguments be made in the presence of all the parties so that each side’s response can be heard. Ex parte communications seriously hurt the proper functioning of the adversary system. For this reason, the American Bar Association’s (“ABA”) 1983 Model Rules of Professional Conduct Rule 3.5(b) bans a lawyer’s ex parte communication with a judge. The ABA’s 1990 Model Code of Judicial Conduct Canon 3B(7) also prohibits a judge from initiating, permitting or considering ex parte communications concerning a pending or impending proceeding. An ex parte communication is a “communication about a case which an adversary makes to the decision-maker without notice to an affected party.” A written communication that is simultaneously served on all other parties to an adversary proceeding is not an ex parte communication. Similarly, a judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted outside the presence of all the parties adversely affected. However, there are some exceptions to the principle of prohibition of ex parte communications under the American legal ethics. First, many ex parte communications are “authorized by law.” These communications include, for example, requests for emergency restraining orders, applications for search warrants and wiretaps, and default judgments where a party has notice but fails to appear. Second, Canon 3(B)(7)(a) of the ABA’s 1990 Model Code of Judicial Conduct permits ex parte communications, under certain conditions, for “scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits.” It is true that Korea also has legal ethics which prohibit a lawyer’s ex parte communication with a judge. However, they are too vague and incomplete to guarantee fair process in the judiciary system. Therefore, we need to revise our ethical code to include more specific anti-ex parte communication provisions following the model of the American codes. More importantly, we need to make sure that those ethical code be strictly observed by the lawyers and the judges in their practice of law.