If a judge asks a lawyer ex parte to draft the order or judgment, can the lawyer do it without telling opposing counsel?

Plain-English summary

A lawyer asked about the practice (which the lawyer believed common) of a judge contacting one attorney ex parte to prepare an order, telling that attorney the general ruling, with the attorney drafting the order and submitting it for the judge to accept or reject, while opposing counsel is never told. The inquiry asked whether such ex parte communications are proper and whether the contacted lawyer must disclose the contact to opposing counsel.

The opinion concluded that, contrary to the inquirer's belief, the described practice is rare and aberrant from usual Illinois practice, where (consistent with Supreme Court Rule 271) the prevailing party's lawyer prepares a draft order and submits it to all interested counsel before presenting it to the court. While noting that judging the conduct of judges is beyond its scope, it cited Supreme Court Rule 63(A)(4) of the Code of Judicial Conduct, which bars a judge from initiating or considering ex parte communications on the merits except in limited situations.

The opinion concluded that the lawyer's duty is congruent with the judge's. Under Rule 3.5(i), a lawyer may not communicate ex parte with a judge as to the merits of a pending cause except in official proceedings, in writing with prompt delivery of a copy to opposing counsel, orally on adequate notice, or as otherwise authorized by law. It concluded that drafting an order after a contested hearing concerns the merits (citing Opinion 93-12 and In re Wisconsin Steel Corp., which called writing a judge's opinion a communication on the merits "more plenary" than most), that Supreme Court Rule 271 does not excuse notice to opposing counsel, and that a judge's initiation of the contact does not relieve the lawyer's duty (citing In re Ragatz, where a lawyer was suspended for responding to a judge's ex parte letter without copying opposing counsel, and City of Chicago v. American National Bank, holding orders entered without notice void). It concluded that a lawyer receiving such a request should suggest the judge include all counsel (by conference call or written notice), and at a minimum must give timely notice of the fact and substance of the communication and promptly deliver copies of any draft to all counsel.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 3.5 and its Comment [2]), while noting the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: A judge asked me to draft the order. Can I do it without telling the other side?

A: The opinion concluded you cannot; you must give opposing counsel prompt notice of the fact and substance of the contact and deliver copies of any draft, because the order's wording concerns the merits under Rule 3.5(i).

Q: Does it matter that the judge, not the lawyer, started the ex parte contact?

A: No. The opinion concluded the judge's initiation does not excuse the lawyer's separate duty to notify, citing In re Ragatz, where a lawyer was disciplined for responding to a judge's ex parte letter without copying opposing counsel.

Q: What should the lawyer do when a judge makes such a request?

A: The opinion concluded the lawyer should suggest the judge include all counsel by conference call or written notice, and at a minimum must promptly notify all counsel and provide copies of any submitted draft order.

Background and rules framework

The opinion interpreted Rule 3.5(i) (the bar on ex parte communication with a judge as to the merits, with its exceptions for written or oral communication on notice to opposing counsel; Model Rule 3.5), read alongside Supreme Court Rule 63(A)(4) of the Code of Judicial Conduct and Supreme Court Rule 271 on the preparation of orders.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 (impartiality of the tribunal; ex parte communication) / Illinois Rule 3.5(i)

Cases:

• In re Wisconsin Steel Corp., 48 B.R. 753 (N.D. Ill. 1985), drafting a judge's opinion is a communication on the merits
• City of Chicago v. American National Bank & Trust Co., 171 Ill. App. 3d 680, 525 N.E.2d 915 (1st Dist. 1988), order entered without notice void
• In re Ragatz, 146 Wis. 2d 80, 429 N.W.2d 488 (1988), 60-day suspension for responding to a judge's ex parte letter without notice

Other opinions cited:

• ISBA Opinion No. 93-12: "on the merits" relates to the content of the communication

See also

• ISBA Ethics Op. 93-12: Ex Parte Communication to Obtain Emergency Relief
• ISBA Ethics Op. 13-09: Direct Communication With Government Representatives

Source

• Landing page: https://www.isba.org/ethics/opinions/9407