The Latest Music for the Ex Parte
November 4, 2022
Attorneys licensed in North Carolina are probably familiar with the prohibition on ex parte communications with judicial officials. We know there is a Rule of Professional Conduct that says, “generally, just don’t.” We know the State Bar adopted multiple formal ethics opinions on varying aspects of that prohibition. But if you haven’t read the Rule and ethics opinions lately, we have some important updates for you.
In March 2019, the NC Supreme Court approved amendments to Rule 3.5 which had the effect of streamlining the provisions related to ex parte communications. Under Rule 3.5(a):
A lawyer representing a party in a matter pending before a tribunal shall not: . . . (3) unless authorized to do so by law or court order, communicate ex parte with the judge or other official regarding a matter pending before the judge or official[.]
A new provision in Rule 3.5(d) sets out valuable clarifications:
(1) Ex parte communication means a communication on behalf of a party to a matter pending before a tribunal that occurs in the absence of an opposing party, without notice to that party, and outside the record.
(2) A matter is “pending” before a particular tribunal when that tribunal has been selected to determine the matter or when it is reasonably foreseeable that the tribunal will be so selected.
In light of these changes to Rule 3.5, the State Bar Ethics Committee immediately began the work of drafting and proposing a new formal ethics opinion reflecting the updates, and 2019 FEO 4 was born. The initial version was a relatively brief overview of the effect of the rule changes, but in July 2019, an Ethics Subcommittee was charged with studying the issues and drafting a new opinion. The subcommittee members felt that the existing opinions on the subject created a confusing body of analysis, and a new opinion could serve as a single reference point to assist lawyers. The opinion was drafted, revised, published for comment, revised, published again, revised again . . . you get the picture.
Two years later, in July 2021, the State Bar Council adopted the final version of 2019 FEO 4 as a new formal ethics opinion discussing the permissibility of various communications between lawyers and judges. This opinion is striking in that it represents something of a “fresh start” for the guidance from the Ethics Committee regarding ex parte communications. With the adoption of 2019 FEO 4, the State Bar Council withdrew seven prior ethics opinions: RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, and 2003 FEO 17. As 2019 FEO 4 explains, the prior seven opinions spanned 30 years and were based upon different iterations of the Rules of Professional Conduct.
This new ethics opinion has replaced all prior ethics opinions on ex parte communications. 2019 FEO 4 provides background and a general discussion of ex parte communications and Rule 3.5, and then offers guidance regarding five common scenarios involving informal communications with judges. Scheduling issues feature heavily in the discussion.
It is worth a few minutes of your time to read through 2019 FEO 4 so that you are up to date on the Rule and opinions. A few minutes now may save you some confusion and possible trouble down the road. We would be glad to talk with you about how Rule 3.5 and 2019 FEO 4 may apply to your specific situation.