Ethics Opinon 1989-1

I
QUESTION PRESENTED

After a Law & Motion hearing, respondent party ("A") prepares a proposed order and sends it to moving party ("B") for approval as to form. "B" does not approve the order, but sends to "A" an alternative proposed order for approval as to form.

Instead of approving the alternative order, "A" sends both proposed orders to the court, along with a letter arguing why its order should be adopted by the court, and further arguing why the court should change the ruling it made at the hearing. The letter and orders are delivered to the court by hand, but delivered to "B" by mail. The court adopts "A's" proposed order before "B" receives the correspondence.

Does "A's" correspondence to the court violate any ethical rules?

II
SUMMARY

Rule 5-300(B) of the Rules of Professional Conduct (effective May 27, 1989) permits argument in written communication to a judge, so long as the communication is provided to opposing counsel. In this case, however, providing the communication to opposing counsel by mail is effectively no different than a complete failure to provide the communication. In addition, the failure to indicate to the court that the written communication was not provided to opposing counsel at the same time and in the same manner as it was provided to the court is misleading. Thus, the manner and content of the written communication violates section 6068(d) of the Business and Professions Code and Rule 5-200.

III
DISCUSSION

Unless otherwise prohibited by statute or rule, parties are generally permitted to present argument to the court regarding the content and form of proposed orders. Indeed, the transmittal to the court of proposed orders, along with a declaration outlining any argument concerning content, is generally authorized by most local rules of court.

In the case of such ex parte written communications with the court, counsel must be careful to avoid misleading the court and should endeavor to provide opposing counsel reasonable opportunity to comment upon or argue the merits of the dispute. Rule 5-300(B) of the California Rules of Professional Conduct (effective May 27, 1989) provides, in part:

A member shall not directly or indirectly communicate with or argue to a judge or judicial officer upon the merits of a contested matter pending before such judge or judicial officer, except:

. . .

(4) In writing with a copy furnished to [all] other counsel. . . .

This is, "in essence, a rule of fairness meant to insure that all interested sides will be heard on an issue." Heavey v. State Bar, 17 Cal.3d 553, 559, 131 Cal.Rptr. 406, 409 (1976).

In this case, two concerns arise from the delayed transmission of the written communication to opposing counsel. First, although Rule 5-300(B) does not expressly require concurrent or prior transmission of the written communication, we believe that fairness compels such a requirement whenever it is reasonably likely that the court may act upon the communication before opposing counsel would be able to respond.

In this regard, we believe that Formal Ethics Opinion No. 1984-82 of the State Bar of California is instructive. That opinion specifically applies former Rule 7-108 to prohibit counsel from arguing the merits of a contested matter in a written communication to an adjudicative administrative agency without furnishing opposing counsel with a copy of the communication. The opinion quotes the case of Camero v. United States, 375 F.2d 777, 781 (Ct. Cl. 1967), which states, "It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless."

Although, under Rule 5-300(B), written communication and argument to the court is specifically allowed, the failure to serve the communications on "B" in the same manner as on the court effectively constituted an improper ex parte communication to the court. Where it is reasonably likely that the court may act upon the ex parte communication prior to opposing counsel's receipt and opportunity to respond, such service effectively denies opposing counsel any opportunity to respond and, therefore, constitutes an improper ex parte contact.

Second, we believe that the failure of "A" to indicate to the court that the papers are only served by mail on "B" raises the further concern that the communication implies concurrent or prior service upon opposing counsel--an implication which, in this case, is false. Section 6068(d) of the Business and Professions Code requires that a lawyer employ "such means only as are consistent with truth and never seek to mislead the judge or judicial officer by an artifice or false statement of fact or law." Similarly, Rule 5-200 requires that an attorney, in representing his or her client, only employ such means as are consistent with truth, and not mislead the judge by means of any artifice.

The concealment of material information is just as improper as overtly false statements. Griffis v. S.S. Kresge Co. , 150 Cal.App.3d 491, 499, 197 Cal.Rptr. 771, 777 (1984). In this case, the failure to inform the court that "A" has not hand delivered the written communication to "B," but has only sent it by mail, could mislead the court into signing the order without giving "B" opportunity to respond, and is therefore improper.

We recognize the unpredictability of litigation, the varying demands placed upon counsel to obtain timely entry of orders and the occasional need to present arguments to the court regarding those matters. While we are reluctant to prescribe a definitive ethics rule or opinion regarding the method of service of proposed orders and ex parte written communications regarding the same, we nonetheless believe that counsel must endeavor to ensure that all parties are provided with sufficient opportunity to present argument to the court regarding a contested matter and that the court not be misled as to the nature of that opportunity. Under the facts of this opinion, we believe that not only was opposing counsel denied a fair opportunity to present argument but that the court may have been misled regarding that opportunity due to the circumstances of service.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees, or the San Diego County Bar Association, its agents, employees or members.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.