When the Golden Rule Becomes a Local Rule

If you know a party is represented, must you notify opposing counsel before you seek an entry of default and default judgment against his or her client?

Rule 1.2(a)(3) of the North Carolina Rules of Professional Conduct provides that “[i]n the representation of a client, a lawyer may exercise his or her professional judgment to waive or fail to assert a right or position of the client.”  The comment to the rule explains:

Lawyers are encouraged to treat opposing counsel with courtesy and to cooperate with opposing counsel when it will not prevent or unduly hinder pursuit of the objective of the representation. To this end, a lawyer may waive a right or fail to assert a position of a client without first obtaining the client’s consent. For example, a lawyer may consent to an extension of time for the opposing party to file pleadings or discovery without obtaining the client’s consent.

See Comment to Rule 1.2(a)(3).

So what are an attorney’s obligations when the attorney knows a defaulting party is represented by counsel and that counsel has failed to file an answer to a complaint?  Should the attorney notify opposing counsel of his or her intention to seek an entry of default and default judgment?

Rule 1.2(a)(3) provides that this decision lies within the attorney’s discretion, and that he or she may—without his or her client’s consent—provide opposing counsel advanced notice.  Alerting opposing counsel to this type of procedural deficiency, and permitting him or her to correct it, epitomizes professional courtesy.  Still, many attorneys may zealously purse their client’s interests by forgoing such notice, which is entirely permissible under the North Carolina Rules of Civil Procedure and the Rules of Professional Conduct.

However, providing this type of notice is not a matter of professional courtesy in Mecklenburg County: it is a requirement.  The 26th Judicial District (Mecklenburg County) has enacted local rules which require an attorney to give opposing counsel advance notice:  General Civil Rule 16.6 for the Superior Court Division requires an attorney to provide ten (10) days’ written notice to opposing counsel (where it is known that the opposing party is represented) before seeking entry of default.  General Civil Rule 15.4 for the District Court Division takes the requirement a few steps further, stating:

The 10-calendar-day notice shall be given immediately after the expiration period for filing the answer and no later than five business days after the expiration period.  A violation of this rule will cause the case to be identified as delinquent and may subject the case to dismissal at the discretion of the Chief District Court Judge or presiding judge.

Rule 15.4, General Civil Rules 26th Judicial District, District Court Division. That is, if the attorney knows that a defaulting party is represented by counsel, and fails to provide written notice of his or her intention to seek entry of default (and do so quickly), the case is subject to dismissal.  This is a steep penalty for the zealous advocate who failed to check the local rules before seeking entry of default.

While it is always good practice to extend professional courtesies where we can, it is crucially important to read the local rules of the district where our cases are pending.

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The Law Trumps a Client’s Directive for Payment

Suppose you are a personal injury attorney.  The client has agreed to the settlement and when it comes time to go over the settlement disbursement summary, the client balks at paying a particular medical provider.  Suppose, also, that this medical provider has perfected a valid lien pursuant to G.S. §44-49(a).  Until recently, the State Bar had said that the attorney may pay the medical provider over the client’s objection, with the implication that the decision to do so was within the sound discretion of the attorney.  No more.  Now, pursuant to a recent ethics opinion (2017 FEO 4), if the settlement funds are subject to a perfected statutory lien, the attorney MUST pay the medical provider, even over the client’s objection.

The ethics opinion does indicate that if the client has a valid dispute with the provider about the amount of the charges or whether they were in fact incurred, the attorney must leave the disputed funds in trust.  The attorney may release the funds when the dispute is resolved.  The attorney must, however, inform the client that “absent a prompt resolution of Provider A’s claim that is satisfactory to both parties, Lawyer will eventually be obligated to deposit the funds into the court for disposition. In the interim, if a final judgment is entered on Provider A’s claim such that the claim is no longer in dispute, pursuant to N.C. Gen. Stat. § 44-50, Lawyer must pay Provider A over the client’s objections.”  This section of the opinion creates an affirmative duty to interplead the funds if there is no prompt resolution.  The attorney may not continue to hold the disputed funds indefinitely or even for a lengthy period of time.

Suppose the client then refuses to settle because he or she does not want to pay a provider, or perhaps your attorney fee either.  Well, that’s the subject of a different blog.


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Professional New Year’s Resolutions

It’s the time of year when people make personal resolutions for the coming year – eat less, exercise more, lose weight, spend more time with family, spend less time watching television, don’t sweat the small stuff, etc.  Personal resolutions are a good way to remind yourself of important goals to set for the upcoming year.  It’s also a good time of year to turn off the electronic devices temporarily, engage in some essential self-reflection, set certain professional goals, and most importantly lay out detailed, specific steps to achieve those essential professional goals in 2018.

Professional goals, just like personal resolutions, are individual and the results of introspection about your most important core values and priorities.  Adopting somebody’s else’s resolutions would defeat the essential purpose of the exercise. Setting aside some time in January to reflect on your 2018 professional aspirations will be well worth the investment, in my experience.

The following are just some examples for you to consider and to spark some thought in developing your own core professional values and goals for 2018:

  • Listen more, talk less; as saying goes, you have two ears and one mouth, and they should be used in relative proportion.
  • Live balanced; set boundaries for your clients/patients and your employer/supervisor and stick to them.
  • Work smart; find your most productive period of day and set aside that time to do work that requires concentration and protect it from interferences, except true emergencies.
  • Take vacations and time away from work every week to recharge and disconnect completely.
  • Write brief personal notes or letters to others on a regular basis; set a realistic goal and calendar a reminder.
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Empathy Is at the Core of What We Do

Attorney at Law Magazine featured Deanna and Doug Brocker as Attorneys of the Month in the October edition. Read the article below or click here to read the magazine.

“…I just feel like kindness and empathy, in addition to trying to steer them on the right course, is what they need.”

You’d want Deanna or Doug Brocker at your side if you ever get in trouble and are sent to the principal’s office.

The husband and wife are the principals at Raleigh-based Brocker Law Firm. The firm represents lawyers, doctors, CPAs, Realtors, insurance agents, therapists, and various other professionals in matters involving ethics violations. Doug also represents the North Carolina State Board of Dental Examiners.

Doug served as trial and UPL counsel for The North Carolina State Bar for more than six years, where he investigated and prosecuted disciplinary violations, the unauthorized practice of law, and other similar matters. Deanna served as assistant ethics counsel for the State Bar for over 10 years.

The firm’s clients generally follow one of two paths to its door – either to get advice to avoid an ethics violation or after they have been cited for an ethics violation and need representation in front of a professional licensing board.

Deanna’s focus is primarily drafting attorney grievance responses and ethics counseling. Doug is the litigator.

“Part of the reason folks come to me is because they want to talk out an ethics issue that is a gray area, it’s nuanced. I love that back and forth and talking through complex situations. It’s almost like detective work. I’m asking questions and we are trying to work out the ethics issues,” said Deanna.

“Good professional people do things that violate rules and sometimes they do things they really shouldn’t have done, but it doesn’t make them terrible people or terrible professionals. We’re dealing in that gray area where we’ve got someone who committed a violation or did something wrong but the essential question is, what’s the appropriate thing to do with respect to protecting the public,” said Doug.

“When a client appears before a professional board, our goal is to put our clients in a much better position with respect to their licenses than they would be without us,” said Doug. “but sometimes, success may not be a matter of walking out with a unblemished license for our clients. Frankly, some of our clients don’t need to have a clean outcome. They need to be under some restrictions for their own sake.”

Kindness and Empathy

“I have clients that come to me and are in such a state of despair and I really feel that. Sometimes they’re depressed that they’ve done something wrong and that is just tearing them apart. They don’t know what to do and they’re desperate. I just feel like kindness and empathy, in addition to trying to steer them on the right course, is what they need,” said Deanna.

“Empathy is the most important attribute for a lawyer who does what we do. The clients want to know that we care about them and that we understand where they’re coming from; empathy is at the core of what we do,” said Doug.

“It’s very emotionally stressful for me to represent a professional client. I enjoy doing it,” said Doug, “but I feel the weight of everything that’s going to happen. I feel a huge responsibility if we take on a professional client and their license and their livelihood are on the line. The weight of something really bad happening to that person is crushing at times.”

“I think the reason both of us are drawn to this practice area is that character and integrity are really important to us. One of the things that gets me really worked up is when people are being untruthful with me. I don’t like it from a client and I don’t like it from the other side,” explained Doug. “If I feel like there’s somebody who is just trying to get by, get past something they’ve done without taking responsibility, I have a difficult time representing that person; life is too short for that.

“My values come into play in terms of who I am willing to represent,” Doug continued. “If I feel like I’ve got somebody who is honest and who has integrity, but has made a mistake, I’m willing to advocate for them. I want to actually be looking eye-to-eye with that person, looking at their body language, and getting a personal sense of whether this is somebody that I can spend 50 or 100 hours really putting my heart and soul into defending.”

Virtual Law Firm

“When I worked at a large law firm and did mostly civil litigation, I spent a lot of time chasing rabbits and I didn’t care for it. I saw a lot of client money being spent on what I considered nonsense,” recalled Doug.

When he launched the firm in the summer of 2006 and Deanna joined a few months later, they agreed on creating a virtual law firm. Changes in technology allowed them to just need a place for a law firm administrator and a conference room for client meetings. Most everything else done by the four-attorney firm is done virtually. “We’ve been able to do everything we need to represent clients zealously with our virtual arrangement – without all the additional expenses of a traditional law office.”

“Our goal is to keep overhead low,” said Doug. “A lot of our clients are paying out of their pockets so we need to be as lean as we can be for people to afford our representation.”

Gray Areas

“The older I get, the more gray I see, and I see very little black and white,” said Doug.

“If you are talking about somebody who has done something and the State Bar or other licensing board doesn’t have a clear prohibition or restriction concerning the conduct, generally it’s our position that if you tell us that’s wrong, our client won’t do it again, but you really shouldn’t be disciplining him or her if it wasn’t clear they shouldn’t be doing that,” said Doug

Because of the fluidity of legal marketing Doug and Deanna hold CLEs and speak to groups like the Raleigh Legal Marketing Association.

“Online advertising and social media are areas that are constantly evolving, but the rules of professional conduct remain relatively static. The lawyers who most often get in trouble with legal advertising are those who are creative, think outside the box, and seek to push the limits. The legal advertising rules tend to promote vanilla, uninteresting marketing materials,” said Deanna.

“We tell professionals ‘No, you can’t do that,’ nearly every day. It doesn’t matter whether they are friends, clients or colleagues. It’s not our job to tell clients what they want to hear but to give them sound and safe advice. At the same time, we like to brainstorm with clients about alternatives, or offer ethical ways to achieve the desired result, if possible,” added Deanna.


Doug, Deanna and sons J.P., 19, and Luke, 17, are frequent travelers. “We love to travel and we make it a huge priority. It’s great because we get to spend time exclusively with our kids,” said Doug.

Doug, a cancer survivor, said, “Part of my philosophy is, I don’t know if there is a tomorrow, so if I can do it now and it’s feasible, I’m going to do it. That’s pretty critical to my outlook on things.”

Costa Rica, Hawaii, Alaska, Western and Eastern Europe, Mediterranean, Baltics, Rome, Athens, Turkey and most recently Iceland are but a few places they have visited. “Getting away from the stress of work is not the primary reason we like to travel. We are attracted to the experience,” explained Deanna.

“America is a great country, but we want the boys to learn and see people are doing other great things differently and doing things well in other countries,” said Deanna. “We try to learn about the local culture by trying to hook up with a local when we get there. We mix outdoor experiences, churches, history, antiquities, and architecture because of our sons who have differing interests.”

We Have to Laugh

In person, Doug and Deanna are warm, personable and easily given to laughter. “I love to laugh … I laugh at him,” giggled Deanna. “I’m not particularly funny,” added Doug. “I love to laugh but I’m not a joke teller. Considering the stress of the cases we deal with, we have to laugh – otherwise we’d go crazy. Sometimes we just have to laugh at some of the ill-advised things clients do.”

Living a balanced life is high on the couple’s list of priorities. “We like being the masters of our fates,” said Deanna.

“We try to turn off shop talk during dinner. Our sons get really irritated when we sit around the dinner table debating issues of professional ethics,” said Doug. “I’m afraid we are not always able to turn it off when we go home.”

“I’m failing in that miserably,” added Deanna. “Luckily, Doug and I get along wonderfully all the time. I know that sounds weird, but we really don’t argue about much of anything. It’s nice to have somebody who understands exactly what you do every day.”

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Attorney Referrals: Any Ethics Issues?

Attorneys are often called upon to refer clients or potential clients to other lawyers.  Maybe you do not feel comfortable handling the practice area in question, or maybe you have a conflict of interest.  Under these circumstances are there any ethics issues that arise in making the referral?  Sure. (Aren’t there always ethics issues?)  At least two issues come to mind.

First, any referral you make must be in the client’s interest.  This is true whether you are referring a client to another lawyer or to a third party for other services.  Usually, the client, or potential client, is relying upon your professional judgment in making the referral.  You should consider the client’s needs and determine who might be able to best meet those needs.  You should not merely refer a client to a friend of yours or make a referral simply because you want that other attorney to refer clients to you.  Be honest with the client–if you do not know anyone who can assist, you can at least refer the client to the Bar Association’s lawyer referral service.  If you agree to help them find an attorney, but don’t know anyone offhand, then you may need to undertake some due diligence to find the right candidate.

Second, you can’t accept any sort of referral fee or anything of value in exchange for the referral. See Rule 7.2(b).  Other than a fee, some things “of value” that would be prohibited under Rule 7.2(b) are (1) agreeing to give a referral (quid pro quo) in exchange for a referral, or (2) the agreement by the other attorney to post a testimonial or endorsement for you on LinkedIn in exchange for the referral.

The only way you may accept any fee under the circumstances is if you remain involved in the legal representation of the referred client.  Under those circumstances, you can split the legal fee with the other attorney to whom you referred the client, but only if you comply with Rule 1.5(e).

Rule 1.5(e) provides:

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

Joint responsibility for the representation includes both legal responsibility (malpractice) and professional responsibility.  There is no specific guidance in NC on what is adequate involvement or responsibility in a legal matter to permit fee splitting.  It is unclear whether simply saying you are jointly responsible in a client fee agreement is sufficient.  To be safe, we advise that the attorney should be sure he or she is involved in the legal representation in some meaningful way.

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Spoliation and Social Media

We have received a lot of questions about whether an attorney may advise his or her client to delete Facebook posts or Tweets in anticipation of filing a lawsuit, or even during the course of litigation.  North Carolina Rule of Professional Conduct 3.4 prohibits a lawyer from obstructing another party’s access to evidence, and Rule of Professional Conduct 1.2 prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent.  So, would deleting the social media posts constitute a violation of these rules?  The answer is a resounding “it depends.”

The North Carolina State Bar issued a formal opinion on this question, stating that the attorney “should examine the law on preservation of information, spoliation of evidence, and obstruction of justice to determine whether removing existing postings would be a violation of the law.” (2014 Formal Ethics Opinion 5).  Therefore, the attorney must look to case law for guidance on whether removal of a client’s posting will constitute spoliation of evidence, and each potential removal may need to be examined on a case-by-case basis.

The North Carolina State Bar has determined that as long as the removal of postings “does not constitute spoliation and is not otherwise illegal, or the removal is done in compliance with the rules and law on preservation and spoliation of evidence, the lawyer may instruct the client to remove existing postings on social media.”  (2014 Formal Ethics Opinion 5).  Importantly, the State Bar stated that for purposes of preservation, “the lawyer may take possession of printed or digital images of the client’s postings.”  (Id.)

However, even where an attorney determines that removal of a client’s social media postings would not violate the Rules of Professional Conduct or other laws, the lawyer may still want to consider the practical implications of advising a client to remove social media posts and the impact such deletion may have on his or her client’s case.   Sharp opposing counsel will likely ask a deponent about his or her social media accounts, whether any posts were deleted, and—you guessed it—for detailed explanations of the exact content of what was deleted.  Arguments may ensue about whether the deleted postings are relevant to the case, but the inference of having deleted the postings could be prejudicial (perhaps even more prejudicial than the content of the postings themselves), and could potentially cause lasting damage to the case.

As an alternative to deleting social media postings, lawyers may want to advise clients facing potential litigation to adjust the security and privacy settings on social media pages to the highest level of restricted access.  Again, it is the attorney’s responsibility to determine whether restricting access would violate any laws or court orders. (2014 Formal Ethics Opinion 5).   Although adjusting the security and privacy settings would not prevent discovery of social media postings through traditional methods (such as requests for production of documents pursuant to Rule 34 of the North Carolina Rules of Civil Procedure), it could provide counsel an opportunity to object to production of such posts on the grounds of relevancy, or at the very least, limit the opportunity for opposing counsel to examine your client’s social media pages as an “open book.”

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When “Good Enough” is Not Good Enough

Lawyers often come to us with funds in their trust account that they can’t identify.  Perhaps they hire an accountant or CPA to try to determine to whom the funds belong.  What I hear is invariably the same: “My CPA says he can’t trace the funds to any particular client.  So, the funds must be mine. He says that’s good enough for me to transfer these funds to myself.  Is that right?”  Unfortunately, no.  The State Bar’s position is that if you cannot conclusively determine that the funds belong to you, you may not transfer them to yourself.  You will have the burden of demonstrating that the funds are earned fees to which you were entitled, if you are ever audited.

So, ask yourself, can you trace those funds to an earned fee for a particular client?  Can you find the client ledger showing the disbursements, and the remaining funds in trust?  Can you locate the client fee agreement that demonstrates the basis for your fee?  There should be a paper trail that will support the transfer of those funds from the trust account to the operating account.

What if you can’t trace the funds in trust back to a particular client and demonstrate that they are fees owed to you?  Then, the funds must remain in trust until they can be escheated to the North Carolina State Treasurer. Rule 1.15-2(r) states that

[i]f entrusted property is unclaimed, the lawyer shall make due inquiry of his or her personnel, records, and other sources of information in an effort to determine the identity and location of the owner of the property….If the effort is unsuccessful and the provisions of G.S. 116B-53 are satisfied, the property shall be deemed abandoned, and the lawyer shall comply with the requirements of Chapter 116B of the General Statutes concerning the escheat of abandoned property.

If you need technical assistance concerning the escheat of funds, you can go to www.nctreasurer.com or call the Office of the North Carolina State Treasurer in Raleigh.

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Is a Change in Legal Advertising On the Way?

A new ethics opinion, 2017 FEO 3, has now been published on this issue.

For the public, finding a lawyer is just a click away.  The vast majority of lawyers have websites dedicated to promoting their practice.  For those that do not, there are multiple directories listing contact information for lawyers, and unless you don’t want anyone to know where you work or how to reach you, finding that information is easy.  Currently, the State Bar requires that all lawyers include an office address on any communication advertising the lawyer’s services. Rule 7.2(c).  This requirement aimed to prevent the public from being misled about where an attorney practiced.  If a lawyer only practiced in Asheville, for example, but sent advertisements to persons in Boone and Hickory (with the same 828 area code), then by including a physical office address on the ad, the recipient would know the attorney was not located nearby, and could properly consider that information in determining whether to hire that lawyer.

But when you can find out so much more about a lawyer from his or her website than simply where they are located, why wouldn’t including the website address on an advertisement be sufficient?  Well, it appears the address requirement may indeed be changing with the times.  A newly proposed ethics opinion, Proposed 2017 FEO 3, if adopted, would permit legal advertisements which contain only the lawyer’s website URL, so long as the website includes the lawyer’s name and office address.  Specifically, the proposed opinion states:

Utilizing a website address in an advertisement actually provides a consumer with the ability to access more information about the lawyer or law firm than an advertisement that contains only the lawyer’s or the firm’s name and office address.  Therefore, an advertisement that includes a URL for a law firm’s website complies with Rule 7.2(c) so long as the law firm’s website contains the law firm’s official name or trade name, or the name of a responsible lawyer, and the firm’s office address. The firm name, trade name, or the name of the lawyer must appear on the website homepage.  The firm’s office address need not appear on the homepage provided it can be easily found on the website. 

Although the inquiry in Proposed 2017 FEO 3 only asks about use of an address for billboards, the opinion’s Editor’s Note makes clear that it applies to all forms of legal advertising.  Thus, the proposed opinion would specifically govern banner ads, Google sponsored ads, mobile ads on social media platforms, and other abbreviated on-line advertising, where compliance with the address rule was difficult, if not impossible, due to space constraints.  It would also include radio and TV ads, and all forms of print advertising, including targeted direct mail advertising.

This proposed opinion is published for comment on the State Bar’s website, if you want to take a look.  If adopted, this opinion would likely require a change to Rule 7.2(c), since the Rule specifically requires the lawyer’s name and address to be on the communication itself.  In so doing, perhaps the Ethics Committee might also take the opportunity to revisit other advertising Rules (Rules 7.1-7.5) that may be in need of an update.

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Payoff for Professionalism

What goes around, comes around — Most people use this expression as a warning not to do bad things to others because a bad act may be done to you later in return.  The same principle applies for acts of professionalism, but in a positive sense.  Consistently treating others with professionalism most often pays off with professional acts extended back to you.  This principle applies to actions toward clients, judges, staff, as well as opposing parties and counsel.

Portions of the Creed of Professionalism of the Wake County and Tenth Judicial District Bars is instructive on this issue:

To my colleagues in the practice of law, I offer concern for your welfare. As we work together, I will respect your personal and family commitments. I will share my learning and experience so that we may all improve our skills and abilities.

To the courts and to those who assist them, I offer respect, candor, and courtesy. I will respect and strive to improve the judicial process. I will serve as an officer of the court, encouraging respect for the law and avoiding the abuse or misuse of the law, its procedures, its participants, and its processes.

To opposing parties and their counsel, I offer honesty, fairness, and courtesy. I will seek truth and strive to resolve our clients’ disputes in a dignified manner. I will pursue the most efficient and least costly solutions to problems and avoid unnecessary delay.

Consider one not so hypothetical example:  Attorney A and Attorney B are frequently opposing counsel in often hotly contested matters.  Attorney B inadvertently files a pleading with the Court that is proper on its face but inconsistent with a prior discussion and agreement with Attorney A several months before.  Rather than filing an accusatory motion or other responsive pleading and likely damaging their relationship, Attorney A contacts Attorney B and has a frank but professional discussion reminding him of the prior conversation and the inconsistent information in the document he filed with the court.  As a result, Attorney B promptly files an amended pleading with the Court correcting the inadvertent error, obviating the need for what likely would have been a contentious court intervention on the issue.  See also Rule 1.2(a)(2) of the Rules of Professional Conduct.

Fast forward about a year later in an entirely unrelated matter in which Attorney A and B again are opposing counsel.  In this case, Attorney A files an appeal of an adverse decision to her client.  However, a young associate in her office inadvertently misreads or misunderstands the requirements and serves opposing counsel but does not file the appeal within the time limit, as required in the applicable rule.  Rather than filing a motion to dismiss the appeal, which likely would be denied based on excusable neglect, Attorney B convinces his client not to pursue the issue and to defend the appeal on the merits.  Attorney B informs Attorney A after the decision has been made not to pursue a dismissal.  Again, Attorney B’s professionalism and courtesy to Attorney A avoids potentially permanently damaging their ongoing relationship and eliminates the need for court intervention, without likely changing the result to his client.

In the future, you may find yourself in a situation like the above example, where you need an act of professionalism and courtesy from a colleague or opposing party.  It’s yet one more reason to consistently act with professionalism in all your dealings with clients, colleagues and opposing parties and counsel. Remember the old saying: what comes around goes around – and that can be a good thing.

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

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.

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