More on Ex Parte Rule
I read with interest Sylvia Stevens’ article on the changes in the ex parte contact rule in the November Bulletin. I very much appreciate articles like that, because the article highlights points that did not jump out at me when I read the new rules as a group.
The rule does not seem to address the issue of ex parte contact other than between judges and attorneys. I have had several occasions when a judge’s office will contact me, telling me that he or she received information from a police officer, or court staff, or a pro se, and wanted me to take action based upon the information received. When I have questioned the appropriateness of the court having ex parte communication on a substantive matter, it has always been brushed off, because the court can decide the appropriate weight of the information, and it didn’t come from an attorney. This also frustrates clients when the pro se seems to have direct access to the judge, but I insist that I need to file a motion and give notice before taking action. It seems to me that the judicial rule needs to address any ex parte communication with the court, regardless of whether it came from an attorney or not. It also calls into question whether the attorney should let his client know that it is not inappropriate for the judge to receive information so long as it does not come directly from the attorney.
I also want to point out that the article states that ex parte contact for emergency custody is barred, and cites two out-of-state ethics cases. This is not the law in Oregon. ORS 107.097 (emergency custody prior to judgment) does not require notice prior to when an ex parte order is signed, only that the order be served afterwards. ORS 107.139 (emergency custody after judgment) requires "good faith efforts to confer" prior to the ex parte appearance, which depends upon the circumstances. If the child is in danger and several days notice puts the child in further danger, "good faith efforts" can be notifying the other side a few hours before an intent to appear, or leaving a message of intent to appear.
Regarding the BOG’s slap at the military, how is diversity furthered by removing voices from the dialogue? How is it anything but shameful to censor those who are putting their lives on the line so that ungrateful lawyers have the freedom to spout slogans? Unfortunately, our bar leaders think that when they discriminate, it’s okay. No doubt they will next turn their attention to things like curtailing the liberty of politically incorrect churches and private social organizations.
I suppose we can’t expect much more than this from a bar leadership that also believes the professionals it serves are so backward they must be forced into reeducation programs for indoctrination in the party line. As an attorney currently practicing out of state, I don’t have to support this misguided and overtly insulting ideological agenda. My resignation is in the mail.
A Role Model
I enjoyed the recent article about my centenarian grandfather, Cliff Powers (Profiles in the Law, October 2005). It is absolutely amazing that he was still practicing law until shortly before his 99th birthday. Thank you for including some of his better stories.
My siblings, cousins and I grew up listening to his reminiscences about starting his law practice during the Depression and all the rest. He was certainly my role model. He made law seem like such a noble profession. Amazingly, I’m the only one of the "kids" who turned out to be a lawyer. Maybe the others were deterred by Cliff’s expressed aversion to what were then known as "lady lawyers." By the 1970s, when I was considering going to law school, he had come around to a more enlightened point of view. Yes, you can teach an old dog new tricks!
I can’t begin to tell you the fun I have had visiting Cliff and discussing various legal topics. He sometimes even manages to come up with a story I haven’t heard before. He is still keenly interested in what is going on in the world. I hope my mind is that sharp at 100 (in the unlikely event that I make it that far). Now, if we could only get him to remember the family edict against discussing politics or religion at holiday gatherings!
Attorney at Law
(Member of Washington State Bar)