The inquirer represents two individuals who were sued for slander and libel, defamation of character and invasion of privacy. The inquirer filed preliminary objections on behalf of his clients. After briefing and oral argument, the preliminary objections were sustained and the lawsuit was dismissed with prejudice. During the thirty-day appeal period, one of the inquirer's clients wrote a letter to the Court talking about the burdens to which the lawsuit had subjected him and his family and thanking the Court for the decision it had made. At that time, the court still had not issued an opinion. The plaintiff has appealed the dismissal of his lawsuit.
The letter to the Court was written without the inquirer's knowledge or approval. The inquirer learned about it only when, in passing, his client told him that he had sent a letter to the Court for the purpose of expressing relief that the matter had come to an end.
The Court has neither acknowledged the letter nor acted upon it in any way. The inquirer asks whether he is obligated to provide opposing counsel a copy of the letter.
It is the opinion of the committee that the inquirer is not obligated to provide opposing counsel a copy of the letter his client wrote to the Court.
The two Rules of Professional Conduct which are potentially applicable are Rules 3.5 and 8.4. Rule 3.5, entitled Impartiality and Decorum of the Tribunal, provides:
A lawyer shall not:
(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with such a person except as permitted by law; or
(c) engage in conduct disruptive to a tribunal.
Rule 8.4, entitled Misconduct, provides:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(d) engage in conduct that is prejudicial to the administration of justice.
The Committee believes that the inquirer did not violate Rule 3.5 by virtue of the facts described above, since he himself did not make the ex parte communication. Nor does the Committee believe that Rule 8.4(a) applies under the circumstances, since the inquirer was not assisting or inducing his client to make the ex parte communication, or making such communication through the client. Finally, the Committee does not believe that, under the facts as presented, the failure to provide opposing counsel with a copy of the letter would be prejudicial to the administration of justice.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.