You are involved in litigation and opposing counsel is driving you insane. Deadlines are constantly ignored, and you are becoming increasingly frustrated. You finally draft a pointed e-mail to opposing counsel requesting that he respond to the discovery requests you sent that are yet again overdue. You decide to copy the judge on the e-mail thinking maybe that will get opposing counsel moving. Good idea? No. But why? Rule 3.5 (a)(3) seems to allow ex parte written communications with a judge if a copy is “furnished simultaneously to the opposing party.” Doesn’t that permit unlimited written communications with a judge regarding a pending matter as long as the opposing party is copied?
According to 98 FEO 13, Rule 3.5(a)(3) must be read in conjunction with RPC 8.4(d) and Comment 7 to RPC 3.5. Rule 8.4(d) prohibits conduct that is prejudicial to the administration of justice. Comment 8 (formerly Comment 7) states “[a]ll litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings, a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party.” The opinion notes that informal ex parte written communications could be used to introduce new evidence, argue the merits of the case, or to cast the opposing party or counsel in a bad light. Such informal communications give the appearance of granting undue advantage to one party and are impermissible ex parte communications.
The opinion notes that informal written communications should be limited to the following:
- Written communications, such as a proposed order or legal memorandum, prepared pursuant to the court’s instructions;
- Written communications relative to emergencies, changed circumstances, or scheduling matters that may affect the procedural status of a case such as a request for a continuance due to the health of a litigant or an attorney;
- Written communications sent to the tribunal with the consent of the opposing lawyer or opposing party if unrepresented; and
- Any other communication permitted by law or the rules or written procedures of the particular tribunal.
If you need the judge to know about a problem with opposing counsel, you may file a motion after trying to resolve the matter with counsel. Even if opposing counsel is the one violating the rules, do not try to handle the matter by bringing it to the judge’s attention “informally,” or you may be the one answering to the State Bar.