Ex Parte Communication with a Judge when Permitted by Law
Opinion rules that a lawyer may not communicate ex parte with a judge in reliance upon the communication being "permitted by law" unless there is a statute or case law specifically and clearly authorizing such communications or proper notice is given to the adverse party or counsel.
Editor’s Note: On July 16, 2021, the State Bar Council withdrew this opinion upon its adoption of 2019 FEO 4.
Rule 3.5(a)(3) prohibits ex parte communications with a judge or other official except under the following circumstances:
(i) in the course of official proceedings;
(ii) in writing, if a copy of the writing is furnished simultaneously to the opposing party;
(iii) orally, upon adequate notice to opposing party; or
(iv) as otherwise permitted by law.
G.S. 15A-539 of the North Carolina General Statutes states as follows: "A prosecutor may at any time apply to an appropriate district court judge or superior court judge for modification or revocation of an order of release under [Article 26]." The statute does not say that the application to the judge may be made ex parte .
On more than one occasion, Attorney A has gotten a client's bond modified in a court proceeding only to have the prosecutor communicate with the judge ex parte and obtain a reinstatement of the original bond. The prosecutor, in reliance upon the statement "at any time" in G.S. 15A-539, presumes that he or she is permitted by law to engage in these ex parte communications without notice to Attorney A or the client.
Does the ex parte communication with the judge violate Rule 3.5(a)(3)?
Yes. Lawyers must act in good faith when determining whether an ex parte communication is "permitted by law" particularly because such communications limit the adverse party's right to be heard and to be represented by counsel. Therefore, a lawyer may not engage in an ex parte communication with a judge or other official in reliance upon the communication being "permitted by law" unless there is a statute or case law specifically and clearly authorizing such communication. Such authorization may not be inferred by the absence in the statute or case law of a specific statement requiring notice to the adverse party or counsel prior to the ex parte communication. See RPC 237.