Post-Hearing Submission of Ex Parte Written Communications to a Judge
Opinion rules that an attorney may only provide a judge with additional authority post-hearing if the communication is permitted by the rules of the tribunal and a copy of the writing is furnished simultaneously to opposing counsel.
Editor’s Note: On July 16, 2021, the State Bar Council withdrew this opinion upon its adoption of 2019 FEO 4.
Attorney A and Attorney B argue a motion before a judge. Following the motion hearing, the judge delays ruling on the motion until a later date or takes the arguments under advisement. While awaiting the judge's decision, Attorney A finds additional authority to support his position. Attorney A believes the newly discovered authority is directly on point and may be decisive on the issue argued. Attorney A would like to provide the judge with the case law and accompanying argument in support of his client's position.
Under these circumstances, may Attorney A, subsequent to a hearing, engage in written ex parte communications with a judge by providing additional authority and argument in support of his position?
Attorney A may only provide the judge with additional authority and argument in writing if the rules of the tribunal permit the communication and a copy of the writing is furnished simultaneously to Attorney B, opposing counsel. Rule 3.5(a)(3)(B) permits a written ex parte communication with a judge so long as the "writing is furnished simultaneously to the opposing party[.]" While this rule appears to permit unlimited written communications with a judge provided a copy is furnished to opposing counsel, 98 FEO 13 qualifies the type of communications that may be submitted:
To avoid the appearance of improper influence upon a tribunal, informal written communication with a judge or other judicial official should be limited to the following:
1) Written communications, such as a proposed order or legal memorandum, prepared pursuant to the court's instruction;
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; and
4) Any other communication permitted by law or the rules or written procedures of the particular tribunal.
By limiting the kinds of written communications that may be submitted ex parte, 98 FEO 13 strives to preserve the integrity of the legal system, to avoid the appearance of improper influence on a tribunal, and to prevent one party from gaining unfair advantage by using ex parte communications to introduce new evidence, to argue the merits, or to cast opposing counsel in a bad light. At the same time, a court cannot reach a just and informed result unless it is apprised of material and relevant facts as well as authoritative case law. A wholesale restriction on submission of additional, potentially decisive authority would frustrate a court's ability to make informed decisions.
A resolution of this issue requires a balancing of equally compelling interests. 98 FEO 13 permits a written ex parte communication if "permitted by law or the rules or written procedures of the particular tribunal." Thus, if the local rules would permit the submission of additional authority subsequent to arguments in open court, then it is not unethical to do so. A copy of the writing must be furnished to opposing counsel simultaneously, however. Allowing the written submission of additional authority and supporting arguments promotes the interest in informed decision-making of the tribunal. Requiring the writing to be copied to opposing counsel gives opposing counsel the opportunity to respond in kind and reduces the likelihood that the ex parte communication will result in unfair advantage to one party.
Notwithstanding the above, the attorney making the ex parte submission to the judge post-hearing should include only that authority which he in good faith believes is decisive, on point, and not otherwise cumulative in nature.