Rule 3.5(b) of the Pennsylvania Rules of Professional Conduct states in part: "A lawyer shall not communicate ex parte with [a judge, juror, prospective juror or other official] except as permitted by law..."This opinion addresses a number of questions relating to Rule 3.5(b)'s limitations on ex parte communications with a judge.
The two parts of the analysis of whether a lawyer's communication is prohibited by Rule 3.5(b) are, first, is the communication ex parte and second, is it with a judge, juror, prospective juror or other official? If the communication is not ex parte or is not with a judge, juror, prospective juror or other official, then it is not prohibited by the Rule. If the communication is ex parte and is with a judge, juror prospective juror or other official, then the second part of the analysis is to determine if the ex parte communication is permitted by law. If so, then it does not violate Rule 3.5(b).
Rule 3.5(b), unlike DR 7-110 promulgated under the ABA Code of Professional Responsibility, is not limited to communications on the merits of an adversary proceeding. "Ex parte communications are barred even if it is not clear that the lawyer intend[s] to influence the judge." ABA/BNA Lawyers' Manual on Professional Conduct, at 61:805.
As stated by Professor Hazard, "Rule 3.5(b) contemplates that some ex parte contacts may be permitted by law An obvious example is where a party seeks a temporary restraining order from a judge under such emergency conditions that opposing parties or opposing counsel cannot be notified in time to appear." Geoffrey C. Hazard, Jr. and W. William Hodes, The Law of Lawyering 3.5:301 2nd Ed. (Referencing F.R.C.P. 65(b)). The ABA/BNA Lawyers' Manual on Professional Conduct at 61:804, explains that, "other court rules or case law within the jurisdiction must be referred to in order to determine whether certain ex parte communications are legitimate."
What is the definition of ex parte communications in Pennsylvania? Black's Law Dictionary defines ex parte as "On one side only; by or for one party; done for, in behalf of, or on the application of, one party only. A judicial proceeding, order, injunction, etc., is said to be ex parte when it is taken or granted at the instance and for the benefit of one party only, and without notice to, or contestation by, any person adversely interested. Black's Law Dictionary (6th Ed. 1991). In Mercy v. Department of Health, 645 A.2d 924 (Pa. Commw. 1994), the Commonwealth Court, also citing Black's Law Dictionary, wrote that, "[t]he common and approved usage of ex parte is communications between the decision-maker and one party outside of the record and where the other party does not have notice or the opportunity to contest 645 A.2d at 928-929.
More importantly, in Moran v. Moran, 612 A.2d 1075 (Pa. Super. 1992), the Superior Court, citing Black's Law Dictionary's definition of ex parte, held that "communications were not ex parte because all relevant parties were notified of the communication.612 A.2d at 1077. Thus, a communication is ex parte if it is made by one party outside of the record without providing notice or opportunity to the other side to contest.
Absent extraordinary circumstances, such notice will be inadequate unless it is contemporaneous with the communication to the judge, i.e. at a minimum by the same method of communication so that the other side will have notice at the same time or before the judge does. In addition, if the communicating lawyer suspects or knows that the other side's lawyer may not be immediately available to receive and respond to the notice, then the communicating lawyer should either find the other side's lawyer or delay the communication until the other lawyer is available.
Does copying opposing counsel on a letter to a judge remove the objection that it is an ex parte communication? It does, provided the letter is received by opposing counsel at the same time or before it is received by the judge.
May an attorney contact a judge to determine if the judge will enter an order granting a form of emergency relief available under a procedural rule upon filing of a petition? Without providing all other parties notice or an opportunity to contest, such contact would be prohibited by Rule 3.5(b) unless otherwise permitted by law. However, asking a judge's secretary a non-case specific procedural question would be permissible, because it is not an ex parte communication with a judge, juror, prospective juror or other official.
The considerations are no different when mailing a letter to a judge as opposed to calling or contacting a judge in person. All parties must receive notice or have the opportunity to contest the communication unless the ex parte communication is permitted by law. If the communication is oral and the other parties do not personally here it either by being actually present or on the telephone, then there cannot be contemporaneous notice. Under extraordinary circumstances, prior notice of an oral communication may eliminate the need for contemporaneous notice that it will happen, but generally oral communications outside of the presence of the other parties to the matter should be avoided.
Is the application of Rule 3.5(b) different for administrative matters (i.e., a continuance) as opposed to substantive issues? A continuance may be a very significant issue to parties involved in litigation and should not be requested ex parte unless such a request is permitted by law. In addition, Rule 3.5(b) does not limit the ex parte prohibition to substantive issues. However, certain non-case specific procedural inquiries may be permissible, but the preferable practice is to ask for opposing counsel's approval prior to such communications.
Are the concerns of Rule 3.5(b) eliminated if a particular judge clearly delineates his policy on ex parte communications? Those communications which are consistent with official court rules or standing court orders are permitted by law and therefore do not violate Rule 3.5(b). However, a judge's informally adopted policy permitting certain ex parte communications is not "law" and therefore does not eliminate the concerns raised by Rule 3.5(b).
CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.