A better ex parte contact rule?
By Sylvia Stevens
Of all the changes brought about by the adoption of the Oregon Rules of Professional Conduct, the one that has generated considerable discussion is the rule on ex parte contact with judges and other decision-makers. The concern arises from obvious differences in the language between the old and the new rules. A closer analysis, however, suggests that there may not be as much of a difference as first appears.
Oregon RPC 3.5(b) provides that a lawyer shall not "communicate ex parte with (a judge or other official) during the proceeding unless authorized to do so by law or court order..."
By contrast, the supposedly more liberal former DR 7-110(B) provided that:
In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending except:
(1) In the course of official proceedings in the cause.
(2) In writing if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if the adverse party is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party if the adverse party is not represented by a lawyer.
(4) As otherwise authorized by law or by Judicial Rule 2 of the Code of Judicial Conduct.
Ex Parte Contact
"Ex parte" means "on behalf of or involving only one party to a legal matter and in the absence of or without notice to the other party."1 The adversary system is based on the assumption that adversaries will meet in a fair contest before a neutral tribunal.2 Ex parte communications contravene that philosophy, violate the right of the opposing party to be heard and may constitute a violation of due process. Prohibitions against unauthorized ex parte contact are designed to prevent one party from gaining an undue advantage by having unilateral access to the judge or other official decision-maker. See, e.g. In re Dugger, 334 Or 602, 54 P3d 595 (2002) and In re Smith, 295 Or 755, 670 P2d 1018 (1983).
Such prohibitions also prevent the judge from being improperly influenced or inaccurately informed. In re Burrows, 291 Or 135, 629 P2d 820 (1981); see also Oregon RPC 3.2(d) (lawyer in an ex parte proceeding must inform the tribunal of all material facts that will enable the tribunal to make an informed decision, whether or not facts are adverse).
Both former DR 7-110(B) and Oregon RPC 3.5(b) allow ex parte contact where it is expressly authorized.3 For example, ORS 107.097(3) authorizes ex parte child custody orders, ORS 107.718 provides for ex parte hearings on petitions for family abuse prevention orders and ORPC 70 allows for temporary restraining orders without notice under certain conditions. Under either rule, ex parte contact in accordance with those authorities is permitted.
Contact With Notice
Former DR 7-110(B) purported to permit "ex parte" contact even where not authorized by law, so long as the opposing lawyer or party was given notice. In reality, however, a proceeding about which all parties have notice is not ex parte.
The notice requirements under former DR 7-110(B) were not particularly clear. The rule required "prompt delivery" of a written communication with the court and "adequate notice" of an oral communication. In In re Leuenberger, 337 Or 183, 93 P3d 786 (2004), the lawyer faxed a copy of his written motion after 5 p.m. without indicating his intention to present the motion to the court the following morning. The supreme court concluded that a lawyer’s eleventh-hour transmissions of the motion likely contravened the general purpose but did not violate former DR 7-110(B), because the rule did not require prompt notice of a written communication with a judge; rather, it required only prompt delivery of the written communication. The court also found no failure to provide "adequate notice" under former DR 7-110(B)(3), even though the lawyer submitted his written motion to the judge in person. Although the supreme court believed that the lawyer’s conduct was intentionally designed to effectively deny opposing counsel the opportunity to prepare any meaningful response, the accused submitted his ex parte communication in writing, not orally, and as such it fell within the prompt delivery requirement of former DR 7-110(B)(2).
Oregon RPC 3.5(b) has no equivalent provision regarding noticed communications. The absence of any such language does not mean, of course, that such communications are prohibited, only that the new rule does not dictate the form or nature of the requisite notice. No specific rule is needed to legitimize communication with the court when the other side is properly notified. In the absence of specific rules, the sufficiency of the notice will be a matter left to the inherent power of the trial courts to assure fairness for the parties. It is appropriate to note that, while the Oregon Supreme Court found no violation of former DR 7-110(B) in Leuenberger, the lawyer and his clients in the underlying case were sanctioned twice by the trial judge as a result of the lawyer’s inadequate notice to opposing counsel.
On the Merits
The most significant difference between former DR 7-110(B) and Oregon RPC 3.5(b) is that the former rule applied only to communications "on the merits of the cause,"4 while the new rule draws no such distinction between merits and procedure. This leads to the question of whether even the most general procedural or administrative matters can be raised on an ex parte basis under Oregon RPC 3.5(b). Based on the plain language of the rule, the answer appears to be "no," unless there is a trial court rule or other authority for such communications.
It is probable that Oregon RPC 3.5(b), like its ABA Model Rule counterpart, is not intended to prohibit ex parte contact on purely administrative or procedural matters because there is no risk of influencing the judge as to the substance of the particular proceeding. Routine and customary communications for the purpose of scheduling a hearing, for instance, are not likely to create risks the rule is designed to avoid.5 At the same time, the distinction between procedure and merits is not clear. An ex parte inquiry about a judge’s reaction to lawyers moving about the courtroom during trial may seem innocent enough. However, the lawyer who has unilaterally learned the judge’s preferences on such matter may have a subtle advantage over the uninformed opponent. The absolute prohibition in Oregon RPC 3.5(b) eliminates the need for lawyers to make fine distinctions between procedure and substance.
Oral or Written Contact
As discussed above, former DR 7-110(B) had different notice requirements for written communications and oral communications. Oregon RPC 3.5(b) makes no such distinction and applies to ex parte contact in any form. Here, too, the flat prohibition eliminates the need for lawyers to determine whether personally presenting a written motion to the court is an oral or written contact. See In re Leuenberger, supra.
The prohibition in Rule 3.5(b) is not limited to contacts initiated by the lawyer. For example, JR 2-101(C) of the Oregon Code of Judicial Conduct permits a judge to communicate ex parte "when circumstances require for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits" and the judge "reasonably believe(s) that no party will gain a procedural tactical advantage as a results of the ex parte communication." The judge must also "promptly notify all of the parties of the substance of the ex parte communication and allow an opportunity to respond."6 Some authorities suggest that if the court initiates an ex parte contact that is not authorized by law, the lawyer is obligated to refuse to participate and to request that opposing counsel be included in or notified of the communication.7
It is also irrelevant that the lawyer doesn’t intend to influence the court or other official. Ex parte communication is barred even if the lawyer acts with a laudable motive, such as protecting the client’s interest or in the face of an emergency. See, e.g., In re Anonymous, 729 NE 2d 566 (Ind. 2000) (ex parte contact to get emergency child custody transfer not justified by lawyer’s good faith belief he was acting in child’s best interest and that true emergency existed); In re Bemis, 938 P.2d 1120 (Ariz. 1997) (attempt to communicate ex parte improper even in absence of intent to gain unfair advantage and based on belief that action was necessary to protect client’s interests).
So, has the adoption of Oregon RPC 3.5(b) really effected a significant or meaningful change in Oregon practice? I submit that the answer is no.
Former DR 7-110(B) allowed communication with the court without notice to the opposing counsel or party only if such communication was authorized by law or judicial rule. Oregon RPC 3.5(b) also allows such communications as authorized by law. Oregon statues and court rules allow ex parte communications in a variety of circumstances, albeit generally in exigent circumstances where notice to the other side is impracticable or would defeat the purpose of the relief sought.
Former DR 7-110(B) allowed other communications with the court only upon prompt or adequate notice to the opposing counsel or party. Oregon RPC 3.5(b) does not prohibit such "noticed" communications, but leaves the nature and sufficiency of the notice to substantive law or the inherent power of the courts.
Former DR 7-110(B) prohibited ex parte contact only when it related to the merits of the cause. It was clear, however, that communication ostensibly on a matter of procedure could affect the merits and violate the rule.
Oregon RPC 3.5(b) strips away the potential for confusion that existed under former DR 7-110(B) by making it clear that ex parte contact is limited to that which is authorized in substantive law or court order. It appears, on reflection, to be a better rule than its predecessor.
1. Merriam-Webster’s Dictionary of Law, 1996, at www.findlaw.com.
2. The prohibition applies to "other officials," including administrative law judges, hearings officers, arbitrators and others who are decision-makers. For simplicity, ex parte contact is discussed here in the context of judges.
3. See In re Gillis and Carstens, 297 Or 493, 686 P2d 358 (1984), holding that ex parte contact did not violate former DR 7-110(B) where the lawyer had a good faith belief that the contact was authorized by law where the law was unclear.
4. "On the merits" under former DR 7-110(B) was been construed broadly. For example, in In re Schenck, 320 Or 94, 879 P2d 863 (1994), the court explained that a communication may concern procedure as well as substantive law and still be on the merits of the cause. The communication in that case indicated disagreement with a judge’s decision to delay the case and argued that that decision was not well founded in law, which the court held was a comment on the merits. In In re Burrows, supra, a prosecutor’s ex parte request that the judge reduce a defendant’s bail so that the defendant could serve as an informant was held to be "on the merits" because it could have influenced the judge in later sentencing the defendant.
5. Restatement of the Law Governing Lawyers §113, Comment c.
6. JR 2-101(B) prohibits a judge from communicating with a lawyer or party "about any matter in an adversary proceeding outside the course of the proceeding except with the consent of the parties or as expressly authorized by law or permitted by this rule."
7. Illinois Ethics Op. 93-12 (1993) (lawyer who receives ex parte request from judge to prepare order in pending case should suggest that judge include opposing counsel in the conversation or advise opposing counsel of the judge’s ruling and instructions); Michigan Ethics Op. RI-195 (1994) (lawyer who is contacted ex parte by judge in pending matter may not draft findings and conclusions as requested by judge without notice to opposing counsel). Cf., Iowa Ethics Op. 92-13 (1992) (lawyer may comply with judge’s ex parte direction to prepare decision for judge once merits of case are decided).
© 2005 Sylvia Stevens
ABOUT THE AUTHOR
Sylvia Stevens is OSB assistant general counsel and administrator of the Client Security Fund. She can be reached at (503) 620-0222 or (800) 452-8260, ext. 359, or sstevens@ osbar.org.