Issue No. 91
October 22, 2018
In this issue....

  • Houston Chronicle Endorsements for Family Courts (Millard was a No Show Even for That)
  • My 2018 Election Predictions
  • Democratic Judicial Candidate Profile: Sandra Peake
  • Ex Parte Communications Between a Judge and an Amicus Attorney are Unethical and Criminal

The Media is Starting to Pick Up the Hotze-Woodfill-Family Judges Story

The widely read political blog, Off the Kuff , by Charles Kuffner, summarized my series of articles about the shameful influence of the anti-gay bigot Steven Hotze on some family court judges.
Kuffner provided a long quote from my two part series on Hotze, Jared Woodfill and the five judges who sent them money, provided links to my blog and then wrote:

That’s Part 1. Here’s Part 2 . Both are long and detailed, far too in depth for me to usefully excerpt, so go read them. Enos is up front about generally supporting Democrats, but has no problem crossing over to support judges he likes, as well as District Clerk Chris Daniel. Enos documented a bunch of bad behavior by Judges Alicia Franklin and Denise Pratt in 2014; see here for those archives. If he’s coming at you, he’s got the receipts. Lord knows, no one deserves to be thoroughly and humiliatingly defeated more than Steven Hotze, and no judge worthy of the name should want to be associated with him . Go read what Enos has to say on the matter.

Click here to read Kuffner's blog, which is definitely read by most reporters and new directors in the Houston media.
I may not win every case (even if in my heart I expect to). I just want an efficient system in which my client gets a fair hearing before a judge who works hard, knows the law, and does not play favorites. I also expect judges to appoint qualified amicus attorneys who zealously look after children (and who actually personally visit their minor clients in their homes). Is that asking too much? Stay tuned.
Greg Enos
The Enos Law Firm
The Enos Law Firm
  17207 Feather Craft Lane, Webster, Texas 77598
 (281) 333-3030
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Houston Chronicle Endorsements for Harris County Family Courts
The Houston Chronicle editorial board met with hundreds of candidates, including those running for Harris County family courts.
Judge Lisa Millard was not even able to show up for her meeting with the editorial board, so they endorsed her opponent Sonya Heath. Every other judge and candidate found the time to meet with the Chronicle .

Judge Charley Prine (one of the shameful "Hotze Five" who gave money to the anti-gay hate group's affiliated mystery company) was also not endorsed. One factor was Prine's campaign web site which proclaims," Marriage: One man and one woman ." I assume Prine is aware the U.S. Supreme Court has ruled that the Constitution requires that marriage must include same sex couples. So, Prine seems to be ignoring his oath to uphold the Constitution and openly showing his prejudice. Any private citizen is free to express their beliefs and bigotry, but judges are not.

What if Prine's campaign web site said, "Marriage for members of the same race only," as if the Supreme Court had not also ruled on that subject as well? I cannot believe a smart guy like Charley would put this on his web site (and leave it there after the Chronicle published its endorsements). I am sure Dr. Hotze is proud of him, but this should be the basis of a complaint with the worthless Judicial Conduct Commission and for a motion to recuse Prine in any case involving a same sex couple.
Judge Alicia Franklin York was endorsed by the Chronicle . Much to the surprise of many, I also give Judge Franklin York high ratings based on what I have personally seen (except for the politically disgusting Granmayeh case I have written about before). I found it interesting that the Chronicle wrote:

When a sitting judge gets mildly ruffled in a one-hour endorsement meeting, we get concerned that she might have problems keeping her cool in the highly charged atmosphere of family court. Unfortunately that’s what we saw with incumbent Alicia Franklin York.
. . . .
Her challenger, Germaine Tanner, was unflappable during the same meeting and provided analytical answers that nearly convinced us to urge voters to unseat the incumbent. Tanner not only has extensive family law experience but also boasts quasi-judicial experience as a hearing examiner for the Texas Education Agency. We found Tanner’s complaint that lawyers feel powerless in the entrenched family court system to be particularly poignant.

The Chronicle endorsed:

245th: Roy Moore
246th: Angela Graves-Harrington (instead of incumbent Charley Prine)
247th: John Schmude
257th: Melanie Flowers (over Sandra Peake)
280th: Angelina Gooden
308th: Gloria Lopez (instead of incumbent James Lombardino)
309th: Sheri Dean
310th: Sonya Heath (instead of "Missing in Action" Lisa Millard)
311th: Alicia Franklin York
312th: David Farr

Click here to read the complete Chronicle endorsement editorials.
My 2018 Election Predictions
Early voting for the November 6 general election starts today and goes through November 2. In Texas, over half of all votes cast will be from early voting. Harris County will have 46 early voting sites and voters can go to any site in their county to vote early. On election day, voters must go to their specific local precinct.  Click here for a PDF map of early voting sites.  Click here to go to a Google Map showing early voting sites. Voters need to have one of seven kinds of identification (like a driver's license) or must jump through some hoops just to cast a provisional ballot.

By the end of this week, we should have a general idea of whether turnout is at record levels as many predict. We will also know how many folks are voting at primarily Democratic voting centers and how many have voted at Republican strongholds. Those numbers will give us a general idea of how the vote is going.

The Senate campaigns will continue their own internal daily polling, but public polls we get to see are largely now over. Polls in recent weeks showing Beto O’Rourke tied or narrowly ahead and more recent polls showing Ted Cruz pulling into a 5% - 9% lead all need to be taken with a grain of salt. 

As we learned in 2016, accurate polling on the state or local level is very hard to do these days. Public opinion polls did accurately predict the final national vote tally between Clinton and Trump in 2016, but many state-wide polls were way off. Unlike 20 years ago, 90% of those called by pollsters will not answer. Most adults no longer have land lines and many cell phone users will not answer calls from unknown numbers. So, pollsters have to assume that those people who do answer the poll questions are representative of the great majority who do not answer. Pollsters also have to make educated guess on who is likely to vote and they have to adjust their total answers to reflect demographics. If, for example, 800 Texans provide answers to a phone poll and 66 of those are of Asian ethnicity, the pollster must adjust and count only 35 of those answers because Asians are only 4.4% of the 2018 Texas population. So if 31 of the Asians who answered the poll are dropped from the analysis at random, the pollster must assume those 31 not counted would have the same opinions as the 35 who are counted.  

The most difficult task for the pollster is to accurately project who among the 800 people who answered the above hypothetical poll are likely to vote. Elections with unusually high turnout and elections when certain groups turnout in unusually large numbers totally screw up polls. This is what happened on many state-wide polls in 2016 which projected that Clinton would defeat Trump. In Wisconsin for example, people showed up to vote for Trump in 2016 who had not regularly voted before. Also, in 2016, about 13% of all voters made their minds up in the final week of the election campaign and polls completed a week or two before the election could not pick up that trend.

So, do not assume that polls showing Ted Cruz with a 7% to 9% lead over Beto O’Rourke to be accurate. Enthusiasm and energy seem to be on O’Rourke’s side in this election. I actually think Trump’s visit to Houston tonight will do more to energize Democrats than Republicans. Beto’s path to victory always involved getting the young and those of color to vote in numbers never seen before in Texas.
O’Rourke out raised Cruz three to one in the final three months of the election period. Beto raised more money than any candidate for Congress every has in history in a single quarter. Beto surpassed the previous record set by New York Senate candidate Rick Lazio, who was destroyed by Hillary Clinton in 2000 (thus proving that raising a lot of money does not guarantee victory).  O’Rourke raised his record $38.1 million from 802,836 individual donors. If all of those donors actually lived in Texas, that number alone would be one-third of the total vote that would have been needed to win the last U.S. Senate race in 2014 (4,638,552 voted in that election).

Click here to read a great story in The Intercept on the Beto campaign, which says in part:

O’Rourke has now spent at least $12 million on his digital program, or around 30 percent of all his campaign spending — a huge sum compared to other campaigns, particularly on the Democratic side. The vast majority of that money likely went toward digital advertisements, many of which are designed to grow his email list and get supporters to become donors, but also double as ads that people see (though many of those may be out of state). According to Google’s political advertising transparency report, no other candidate on the ballot this year is spending more money on Google’s platform than O’Rourke. And Facebook’s political advertising tool shows more than 5,300 ad variations run by his campaign.
The critical difference for O’Rourke is that his campaign does not limit a supporter’s input to the act of making a financial contribution. Where [Georgia candidate] Ossoff treated people as ATMs, O’Rourke is converting donors into volunteers to turn out voters.

O’Rourke’s field operation is unlike any ever seen outside a presidential campaign. In an act of radical campaign transparency, O’Rourke’s campaign published its entire organizing plan online, showing every supporter — and everyone on Ted Cruz’s side — the exact plan, goals, and methods for how O’Rourke can win. The campaign’s precinct-by-precinct goals are updated in real time on his campaign’s website.

His campaign only has 10 official field offices across the entire state of Texas, which ordinarily might never be enough to organize the votes he needs to win. Instead, the campaign asked supporters to set up “pop-up” campaign offices, of which there are currently 862 across the state, each staffed by “super volunteers” who can ask the campaign for support as needed. These small, volunteer-run offices in garages, offices, and homes are official intake points for anyone who wants to knock on doors or make phone calls to turn out voters.

The most reliable indicator of the strength of a campaign is not just how much money you raise, but from how many people, and how many volunteers you have knocking on voters’ doors. And it’s very easy for campaigns to turn donors into volunteers, and volunteers into donors.

While polls of likely voters may show O’Rourke down by 8 points or more, his campaign hopes that this massive volunteer operation will turn out enough new, infrequent, or otherwise unpredictable voters to overcome any deficit polling might show.

Beto’s campaign website has always contained his specific campaign plan and you can click and see how his block walking and phone calling is doing in your specific voting precinct. For example, in Harris County Precinct 746, the website as of Friday showed 184 out of 393 registered voters have been personally visited and there are four “pop up” campaign offices within three miles.  Click here to see this amazing campaign web site, which clearly lists Harris County as Beto’s priority county.

Click here to read a very interesting article in Slate on how Ted Cruz succeeds despite being so disliked by so many.

Sadly, I predict that Cruz will carry the state by about five percent, but Beto will win Harris County by eleven to sixteen percent. In 2016, Hillary Clinton lost Texas by nine percentage points but carried Harris County by 12.4%. In 2016, with Clinton carrying Harris County by over twelve percent, all Democrats running for district judge were elected by an average of 3.8%.  If O’Rourke does as well as I predict, then we should see a Democratic sweep of judges in Harris County. If Beto wins Harris County by less than ten percent, then the Republican judges have a chance. There are some of our Republican judges I want to keep and some I very badly want to see replaced. So, I will have mixed feelings no matter how the election turns out.

It is so stupid that we elect judges in partisan elections in large counties!

I think Democrats will win the U.S. House (which is really bad news for Trump), but the Republicans will actually add one or two seats to their narrow majority in the Senate.

One final word on Beto and the 2020 Presidential race that I have not seen anyone else mention: Abraham Lincoln served one term as a Congressman, then ran for the U.S. Senate and got a lot of national attention even though he lost that election. Two years later, Lincoln was elected President. Just saying.
Democratic Judicial Candidate Profiles:
Sandra Peake
We already know our Republican judges and so I am introducing my readers to candidates they probably are not familiar with. I urge you to meet these candidates yourself and form your own opinions.
Sandra Peake is the Democrat running against Melanie Flowers for the 257th Family District Court, to replace the retiring Judy Warne. Peake has run for family district court twice before and is probably the best known of the Democrats running for a family court this year.

Sandra Peake was raised in Minnesota and has been a Harris County resident for 40 years. After obtaining her law degree from the University of Houston College of Law in 1982, she has been in private practice, with a concentration in the area of family law as well as wills and probate and consumer bankruptcy. 

Sandra has been married for 39 years to David G. Peake, a lawyer and prominent bankruptcy trustee (and the current President of the National Association of Chapter 13 Trustees). The Peakes have two adult children and one granddaughter. In her spare time, Sandra enjoys reading and traveling. Her trips have included visits to France, South Africa, Italy, Greece and throughout the United States.

Peake offices next to her husband on Hillcroft in Southwest Houston. Sandra’s civic activities include the Texas Spring Cypress Chapter of the Links, Inc., the Houston Alumni Chapter of Delta Sigma Theta Public Service Sorority and the Houston Chapter of Jack and Jill of America, Inc. If you are not familiar with Jack and Jill, Inc., click here and here .
Sandra sent me this statement about her candidacy:

I am running for this particular bench because it is an open seat. What motivated me to seek office in the first place was because of my realization that the partisanship had become so entrenched in the Harris County judicial system that it was affecting the independence of the judiciary. When I first became licensed and began practicing in Harris County Courts, I was blissfully unaware of the importance of political affiliation. I actively sought appointments without regard to the political affiliation of the judge. After the 1990 sweep, the entire atmosphere in the family law center changed. There as a lot of fear, uncertainty and favoritism openly displayed towards members of the bar who were identified as Republican. I saw so many flag lapel pins worn in court as a badge of identification. There was much muscle flexing and pronouncements about the importance of party affiliation - Republicans to be given clear preference in some courts. Thankfully, things settled somewhat over time. I still firmly believe family relationship decisions should be based on the law and not burdened with national or local platforms and politics. I have never asked the political affiliation of clients, other lawyers or anyone I meet in general so that I can view them through a lens that is not blurred by politics.

Click here to see Peake’s campaign web site.
Ex Parte Communications Between a
Judge and an Amicus Attorney are
Unethical and Criminal
An amicus attorney is an attorney serving as an attorney in a case, and ex parte communications between any attorney and the judge are prohibited. A judge simply cannot have private discussions with the amicus about the facts of the case if the other attorneys are not present or have not consented in advance. It is not only unethical for the amicus and also for the judge to engage in ex parte communications, it is also probably a crime under Texas Penal Code Sec. 36.04. In 2005, a Brazos County judge and the attorney ad litem he appointed in a car wreck were both indicted for secret email communications about the case that did not involve the other attorneys of record. The judge and attorney both accepted guilty pleas, the judge resigned, and both were publicly reprimanded by the State Bar.

This article is an updated version of a story from one of my first newsletters in 2012. It appears that ex parte communications between amicus attorneys and certain family court judges are still an issue. I have received several credible complaints from lawyers about amicus attorneys who claim they have talked to the judge or threaten to do so.  Several well known experienced attorneys who do a lot of amicus attorney work have recently told me that they still think it is acceptable for them to have private conversations with a judge about a case. One amicus makes a point of going into the judge’s chambers before each hearing he is the amicus on. Another lawyer said she thought ex parte communications with a judge were wrong but as an amicus attorney she does talk privately with judges about how their rulings should be worded (say what?). Another attorney told me an amicus recently told her “I damn well guarantee you the judge will know my opinions way before you even file your motion.” All such ex parte communications are unethical and criminal.

The lawyer representing a parent in a custody case faced with such legal misbehavior is in a difficult position. He or she must worry that confronting the amicus or the judge may hurt his client’s case. I have no such worries. If you bring me solid evidence of ex parte communications between an amicus attorney and a judge, I will file the criminal complaint and send a complaint to the Bar and the worthless Judicial Conduct Commission.

The case of In re S.A.G. , 403 S.W.3d 907 (Texarkana 2013, pet denied) involved an amicus who submitted a bill for a 45 minute meeting with the judge and then was called out on her behavior. The Court of Appeals held that the meeting was an ex parte communication and wrote:

Our adversarial system of justice, grounded in the principle of an impartial judiciary, becomes compromised when one-sided, closed-door, in-chambers discussions with trial judges are encouraged. For this reason, all attorneys are subject to Texas Disciplinary Rule of Professional Conduct Rule 3.05 prohibiting ex parte communications, and judges “shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding.” Tex.Code Jud. Conduct, Canon 3(B)(8).
We find that the trial court erred in allowing ex parte communications with the amicus attorney.

Unfortunately, the Court of Appeals held that the error of unethical ex parte communications was harmless because the judge and the amicus put in the record that the judge had made up her mind independently of her talk with the amicus. No court reporter’s record was provided to the appellate court which made it difficult to assess the effect of the secret talk with the amicus. 

The Court of Appeals concluded: “Therefore, we hold the error, though repugnant , harmless.”
The Texas Family Code makes clear that the amicus attorney serves as an attorney in the case. Sec. 107.001(1) defines "Amicus attorney" to mean, " an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child." The court in S.A.G. said:

However, we do not believe that the Texas Legislature intended the trial court to be the amicus attorney's client or that the statutory language encourages ex parte communications. The role of an amicus attorney is “to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.” Tex. Fam.Code Ann. § 107.001(1). This simply means that the court has the authority to appoint a lawyer to advocate for the best interests of the child, without being bound by the child's objectives of representation or the wishes that the child may express. In fulfilling the specified duties included in Chapter 107 of the Texas Family Code, the attorney will necessarily be assisting the court in fulfilling its purpose to rule in accordance with the best interests of the child. Yet, nothing in Section 107.001 suggests that because the amicus attorney does not “provide legal services to the child,” he must be providing legal services to the trial court by process of elimination. Rather, the amicus attorney “by definition does not exactly have a client.” John J. Sampson et al., Texas Family Code Annotated § 107.007 cmt. (22d ed. 2012).

Sec. 107.003 sets forth the powers and duties of the Attorney Ad Litem and Amicus Attorney and does not mention the power to have ex parte communications with the judge. Sec. 107.003(1)(F) states that the Amicus Attorney shall, "participate in the conduct of the litigation to the same extent as an attorney for a party." Sec. 107.005 describes additional duties of the Amicus Attorney and makes clear that the amicus serves as an advocate in court like the attorneys representing the parents.

Sec. 107.005(b)(4) requires an amicus attorney to become familiar with the American Bar Association's (ABA) standards of practice for attorneys who represent children in child custody cases. The ABA Standards make clear that the Best Interests Attorney (the amicus) should avoid ex parte communications with the judge.

One attorney who does a lot of amicus work really does think it is okay for an amicus and a judge to engage in an ex parte discussion about a case. She cites In Re C.Y.C. , No. 14-11-00341-CV (Tex. App. - Houston [14th Dist.] 8.9.2012, pet. denied)(mem. op.). That case involved Judge Bonnie Hellums and the amicus attorney, Terisa Taylor. The mother lost custody and appealed. One of the wife’s issues on appeal was an ex parte meeting between Taylor and Judge Hellums. The Houston Fourteenth Court of Appeals absolutely did NOT approve of the ex parte meeting, ruling: 

In her third issue, Mother argues that the trial court abused its discretion when it "went outside the record and conducted a private meeting with the court appointed amicus attorney."

At the conclusion of the bench trial, the trial court told amicus attorney Taylor, "I guess you and I need to meet and let's talk to see if we can come up with something that we can — we're not going to keep going the one-week, one-week, that's for sure because this baby is not going to be yanked from one place to another." In its findings of fact, the trial court stated, "On September 1, 2010 after all testimony and evidence was presented, the [trial court] recessed. The Court finds that more time is needed to rule and the Court finds it to be in the best interest of the child to meet with the Amicus and come up with a plan for this child."

On appeal, Mother argues that a private meeting between the trial court and Taylor was prohibited by the Texas Code of Judicial Conduct and the Texas Code of Professional Conduct. Additionally, Mother contends that such a meeting prevents an unsuccessful litigant from presenting the entire record of the trial court proceedings for review in the appeals court.

Mother did not object when the trial court announced its intention to meet with Taylor alone to "come up with a plan for this child." Mother never objected to the private meeting at any other time. Mother did not request that the she or at least her trial counsel be present during the meeting, nor did Mother request that the meeting be recorded by a court reporter.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made in the trial court by a timely request, objection or motion that stated the grounds for the ruling that the complaining party sought and the trial court ruled on the request, objection, or motion or refused to rule on the request, objection, or motion. Tex.R.App.P. 33.1(a).

Because Mother failed to present her complaint in the trial court, her alleged error presents nothing for our review.

The above case certainly does not say a judge and an amicus attorney can conduct an ex parte meeting. It simply says the mother failed to properly object at the time and so did not preserve the error for appeal.
The Texas Code of Judicial Conduct, Canon 3(B)(8) states:

(8) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications or other communications made to the judge outside the presence of the parties between the judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute resolution neutral, or any other court appointee concerning the merits of a pending or impending judicial proceeding . A judge shall require compliance with this subsection by court personnel subject to the judge's direction and control.

Rule 8.04 of the Texas Disciplinary Rules of Professional Conduct states:

(a) A lawyer shall not:
(1) violate these rules, knowingly assist or induce another to do so, or do so through the acts of another, whether or not such violation occurred in the course of a client lawyer relationship;
(2) commit a serious crime or commit any other criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects;
. . . .
(6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law;

Rule 3.05 of the Texas Disciplinary Rules of Professional Conduct states:

A lawyer shall not:
(a) seek to influence a tribunal concerning a pending matter by means prohibited by law or applicable rules of practice or procedure;
(b) except as otherwise permitted by law and not prohibited by applicable rules of practice or procedure, communicate or cause another to communicate ex parte with a tribunal for the purpose of influencing that entity or person concerning a pending matter other than:
(1) in the course of official proceedings in the cause;
(2) in writing if he promptly delivers a copy of the writing to opposing counsel or the adverse party if he is not represented by a lawyer;
(3) orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

An amicus attorney who engages in ex parte communications with a judge would be violating ethical rules 8.04 and 3.05. The amicus attorney would also probably be committing a crime.

The Texas Penal Code at Sec. 36.04 describes the crime of "Improper Influence" as follows:
(a) A person commits an offense if he privately addresses a representation, entreaty, argument, or other communication to any public servant who exercises or will exercise official discretion in an adjudicatory proceeding with an intent to influence the outcome of the proceeding on the basis of
considerations other than those authorized by law.
(b) For purposes of this section, "adjudicatory proceeding" means any proceeding before a court or any other agency of government in which the legal rights, powers, duties, or privileges of specified parties are determined.
(c) An offense under this section is a Class A misdemeanor.

In 2005, a Brazos county judge and the attorney ad litem he had appointed in a car wreck case were both criminally charged for ex parte email communications about the case. The attorney ad litem was charged and finally accepted a guilty plea for violation of Sec. 36.04 for sending emails to the judge about a case which were not sent to the other parties or attorneys (Cause no. 0506066CRIM).

That same attorney also accepted an agreed Public Reprimand from the State Bar. The judge in that case plead guilty to "Abuse of Official Capacity" under Texas Penal Code Sec. 39.02 (Cause no. 0506061CRM). The judge resigned and also agreed to a public reprimand from the State Bar.

The situation of ex parte communications between a judge and an amicus attorney involves three unique dynamics in family court:

Some family court judges, who would never discuss a case ex parte with a lawyer representing the mother or father, truly think it is acceptable to have ex parte discussions with the amicus attorney the judge appointed.

The amicus attorney is often reluctant to say, "no" to the judge who appointed her, who controls her fees and who has the power to appoint that lawyer in the future to other cases. Family attorneys in particular are frankly afraid to confront all powerful family court judges about improper behavior because judges in divorces and custody matters are given such wide discretion.

Proving that ex parte communications have occurred between the judge and the amicus attorney is often difficult. Texas Family Code Sec. 107.007 states that an amicus attorney may not be compelled to produce work product developed during the amicus appointment and may not testify except as to attorney's fees. However, amicus attorneys do speak in court and one possible method would be for an attorney in court with all counsel present on the record to say something like, "Judge, before we get started, with all due respect to the court, I would like for the amicus attorney to state on the record that she has not engaged in any communications with the court about the facts of this case in which other counsel were not involved." The judge might be angry, but she would not look very good if she then refused to allow the amicus to make that statement. The amicus as an attorney would have an ethical duty to tell the truth to the tribunal even if not under oath. DRPC 3.03, 8.04(3).
A lawyer representing a parent or grandparent in a child custody case who can prove that the amicus and judge have engaged in ex parte communications might be tempted to say or do nothing if the amicus and/or judge is on his client's side in the custody case. 

However, DRPC 8.03 states:
Rule 8.03 Reporting Professional Misconduct
(a) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that another lawyer has committed a violation of applicable rules of professional conduct that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate disciplinary authority.
(b) Except as permitted in paragraphs (c) or (d), a lawyer having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judges fitness for office shall inform the appropriate authority.

The attorney who can prove that an ex parte communication has occurred between the judge and amicus, should:
1. Inform her client and the opposing attorney.
2. File a sworn motion to recuse the judge and a motion to replace the amicus attorney.
3. File a grievance with the State Bar and the Commission on Judicial Conduct, and
4. Make a report to the District Attorney's office.

The amicus attorney must refuse a judge's attempts to talk or email about a case ex parte and should notify the other attorneys and has a duty to report the judge.

I have had attorneys recently tell me ex parte communications between amicus attorneys and judges are still going on. If you bring me the proof, I will file the grievances and complaints to the District Attorney. This practice is not just unethical and illegal, it subverts our system of advocacy and rules of evidence and is simply not fair.

If the amicus attorney in your case makes comments about talking to the judge or brags of his influence with the judge, file a motion to remove the amicus and schedule a hearing where you bring these comments to the judge’s attention and make sure there is a record.

I am hoping that some brave amicus attorney (who does not depend on court appointments for his or her income) might “wear a wire” and covertly use their cell phone to record a judge discussing a case in chambers without the other attorneys present.
Thank you for your support! Together We Can Make Our Profession Better and Our Courts More Fair
Attorney Greg Enos has been through his own divorce and child custody battle (he won) and understands what his clients are going through. Enos graduated from the University of Texas Law School and was a successful personal injury attorney in Texas City before he decided his true calling was to help families in divorce and child custody cases. Greg Enos is active in politics and in Clear Lake area charities. He has served as President of the Bay Area Bar Association and President of the Board of Interfaith Caring Ministries. The Enos Law Firm serves clients in Galveston County, Brazoria County and Harris County, Texas.
Greg Enos
Board Certified in Family Law, Texas Board of Legal Specialization
The Enos Law Firm
www. divorce
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