Ex Parte Communication with a Judge
Opinion sets forth the disclosures a lawyer must make to the judge prior to engaging in an ex parte communication.
Editor’s Note: On July 16, 2021, the State Bar Council withdrew this opinion upon its adoption of 2019 FEO 4.
When may a lawyer communicate ex parte with a judge to request a continuance or discuss other administrative matters?
As noted in 97 Formal Ethics Opinion 3, the administration of justice or exigent circumstances may necessitate an ex parte oral communication with a judge to resolve a scheduling or administrative matter. If so, the lawyer may initiate an ex parte communication with the judge only after a good faith effort is made to notify the opposing lawyer. 97 Formal Ethics Opinion 3. Unlike the prohibition on ex parte communications "as to the merits of a matter" in Rule 7.10(b) of the superseded (1985) Rules of Professional Conduct, Rule 3.5(a) of the Revised Rules of Professional Conduct prohibits all ex parte communications with a judge except in the following situations: (1) in the course of official proceedings; (2) in writing, if the lawyer simultaneously delivers a copy of the writing to opposing counsel; (3) orally, upon adequate notice to the opposing counsel; or (4) as otherwise authorized by law. Because an ex parte communication may influence the outcome of a case, a lawyer should avoid such communications unless the opposing party receives adequate notice or the communication is allowed by law. See RPC 237 (citing statutes permitting ex parte communications in certain emergencies) and 97 Formal Ethics Opinion 3.
Lawyer A has two different matters scheduled simultaneously in courts in different judicial districts. She has made several unsuccessful attempts to notify the opposing counsel in one matter that she needs to request a continuance from the judge. May Lawyer A request a continuance in an ex parte communication with the judge?
Yes, provided she fully informs the judge of the reason for her ex parte communication and she gives the judge an opportunity to determine whether he will hear the matter ex parte. The disclosures to the court should include the following: (1) that the lawyer is about to engage in an ex parte communication; (2) why it is necessary to speak to the judge ex parte; (3) the authority (statute, caselaw or ethics rule or opinion) that permits the ex parte communication; and (4) the status of attempts to notify the opposing counsel or the opposing party if unrepresented. If these disclosures are made, the judge can decide whether an ex parte discussion with the lawyer is appropriate.
Do the limitations on ex parte communications with a judge apply equally to criminal defense counsel and to the lawyers in the district attorney's staff?