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The Rule or the Ethics Opinion: What Happens When They Differ?

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The Rules of Professional Conduct set forth the duties owed by lawyers to clients and others, and provide a framework to which lawyers must adhere.  The Rules are the basis for imposing discipline against attorneys. The Comments to the Rules do not impose any additional obligations, but provide guidance as to how lawyers should comply with the Rules.  The ethics opinions (CPRs, RPC, and FEOs) are adopted by the Ethics Committee and serve to provide further interpretation of the Rules and guidance in specific scenarios.  What happens if an ethics opinion conflicts with the Rules? Well, it shouldn’t conflict.  But I can think of one instance where they do.

Rule 3.5(a)(3) provides that a lawyers shall not communicate ex parte with a judge or other official except:

(A) in the course of official proceedings;

(B) in writing, if a copy of the writing is furnished simultaneously to the opposing party;

(C) orally, upon adequate notice to opposing party; or

(D) as otherwise permitted by law[.]

(emphasis added).  This Rule appears to permit potentially unlimited written communication with a judge before whom a matter is pending, so long as opposing counsel or the opposing party is simultaneously copied.  There is, however, an ethics opinion, 98 FEO 13 that says, notwithstanding the language in Rule 3.5, there are only four (4) instances where lawyers are permitted to communicate in writing to a judge or judicial official relative to a pending matter:

1) Written communications, such as a proposed order or legal memorandum, prepared pursuant to the court’s instructions

2) 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;

3) Written communications sent to the tribunal with the consent of the opposing lawyer or opposing party if unrepresented; an

4) Any other communication permitted by law or the rules or written procedures of the particular tribunal.

98 FEO 13.  The ethics opinion reasons that even though Rule 3.5(a)(3) may appear to permit unlimited communications with a tribunal so long as it is copied simultaneously to the opposing side, Rule 3.5 must be read in conjunction with Rule 8.4(d), which prohibits conduct that is prejudicial to the administration of justice.  Further, Comment [7] to Rule 3.5 says that lawyers should not communicate with a judge relative to a matter pending before the judge in a manner that “might have the effect or give the appearance of granting undue advantage to one party.”  The opinion goes on to say that these kinds of informal written communications could be used as an opportunity to introduce new evidence, argue the merits of the case, or cast the opposing party/counsel in a bad light.

In my experience, lawyers have been tripped up by this ethics opinion, because it, on its face, is contrary to the black letter of the Rule of Professional Conduct.  It is also my experience that lawyers have been disciplined for conduct which departs from this ethics opinion.  So, at least while 98 FEO 13 is on the books, you should follow its narrower requirements.  The other potential problem with the opinion is that it can be read to restrict the conduct of lawyers who are not even appearing before the tribunal if the written communication relates to a pending matter.  The Ethics Committee may be taking another look at this ethics opinion and Rule 3.5(a)(3).  Should the Rule or Comments be clarified to include some of the concerns in 98 FEO 13, or should 98 FEO 13 be stricken or redrafted?  If you have any thoughts or insights to share, please feel free to contact the State Bar ethics staff.  The more input from you, the better the result.