Can a lawyer send the presiding judge a letter about a pending case if opposing counsel is copied?

Plain-English summary

The opinion addressed defense counsel who had obtained the conditional release of a habeas petitioner, with the state's appeal pending. Pretrial Services had to notify the court of any violation of the release conditions. Opposing counsel had written Pretrial Services about the defendant's intervening arrest and copied the presiding judge and defense counsel. Knowing no charges had resulted, defense counsel asked whether it would be proper to write Pretrial Services with a copy to the presiding judge and opposing counsel. The Committee declined to address opposing counsel's conduct, noting it lacks jurisdiction over the conduct of someone other than the inquirer.

The Committee read MRPC 3.5 and the then-new MCJC 3A(4) (effective September 1, 1995). Because the inquirer intended to copy opposing counsel, the communication was not ex parte; but it was still an "other communication made to the judge outside the presence of the parties" concerning a pending proceeding, and it fell within none of the MCJC 3A(4) exceptions, since it was not initiated by the judge, not directed merely to court personnel, not from a disinterested expert, and not about scheduling, administration, or emergency. The Committee observed the inquirer could provide any needed clarification when the judge scheduled a determination on the release conditions.

The Committee concluded that a letter addressing the substance of a pending matter, directed to or copying the presiding judge, is improper even when opposing counsel gets a contemporaneous copy, because the traditional ways of addressing the substance of a pending matter are by pleading and oral argument. It tied this to MRPC 8.4(c) and 8.4(e) and to the reciprocal bench-bar duty recognized in Opinion 96 (1946). The propriety of a communication turns on whether it is intended to influence the decision-maker on the merits. The Committee added that CI-1019, which had allowed argumentative correspondence to the judge if opposing counsel was served, rested on former MCPR DR 7-110(B)(2) and DR 1-102(A)(4), provisions not carried into the MRPC, so CI-1019 is superseded.

Currency note

This opinion was issued in 1995 and interprets the Michigan Rules of Professional Conduct and the Michigan Code of Judicial Conduct as they then stood, including MCJC 3A(4) as it took effect September 1, 1995. Both bodies of rules have since been amended, and 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, deadline, or requirement mentioned here.

Common questions

Q: Is it ex parte if I copy opposing counsel on a letter to the judge?

A: The opinion concluded that copying opposing counsel means the communication is not ex parte, but it remains an "other communication made to the judge outside the presence of the parties" and can still be improper.

Q: Can I write the judge about the merits of a pending case at all?

A: Per the opinion, no. The Committee concluded that the substance of a pending matter should be addressed by pleading and oral argument, and a substantive letter to the presiding judge is improper even if opposing counsel is copied.

Q: What communications with the judge are permitted?

A: The opinion pointed to MCJC 3A(4): scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, subject to the rule's conditions.

Background and rules framework

The opinion interprets MRPC 3.5 / Model Rule 3.5 (improper influence and ex parte communication with a tribunal), MCJC 3A(4) (the judge's parallel duty on ex parte and outside communications), and MRPC 8.4(c) and 8.4(e) / Model Rule 8.4 (conduct prejudicial to the administration of justice and assisting a judge's violation of the judicial code). It relies on the Committee's 1946 Opinion 96 and notes MRPC 3.4(a) and (b) differ from the former MCPR DR 7-110(B).

Citations and references

Rules of Professional Conduct and Judicial Conduct:

• MRPC 3.5 / Model Rule 3.5 (ex parte communication; improper influence)
• MCJC 3A(4) (judge's duty on ex parte and outside communications)
• MRPC 8.4(c), (e) / Model Rule 8.4 (administration of justice; assisting a judicial-code violation)
• MRPC 3.4(a), (b) / Model Rule 3.4 (compared to former MCPR DR 7-110(B))

Other opinions cited:

• Opinion 96 (1946) (reciprocal bench-bar duty on ex parte argument)
• CI-1019 (superseded; had allowed argumentative correspondence to the judge under the former Code)

See also

• Mich Ethics Op. RI-011: Adjudicator Negotiating Employment in a Pending Matter
• Mich Ethics Op. JI-149: Judge Consulting Another Judge on a Pending Case
• No further sibling opinions yet indexed.

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1113&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-243

October 5, 1995

SYLLABUS

A lawyer may not communicate with a judge concerning a matter pending before that judge, except for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits.

References: MRPC 3.5; MCJC 3A(4); Op 96. CI-1019 is superseded.

TEXT

Defense counsel obtained the release on conditions of a habeas petitioner; the state's appeal is pending. Pretrial Services is required to notify the court if the defendant violates the conditions of the release. Opposing counsel has written to Pretrial Services about an intervening arrest of the defendant, and has copied in the presiding judge and defense counsel. Defense counsel knows no charges resulted from the arrest, and asks about the propriety of writing Pretrial Services, with a copy to the presiding judge and opposing counsel.

The Committee does not have jurisdiction to discuss the conduct of someone other than the inquirer or past conduct. Therefore we will not address the conduct of the opposing counsel.

MRPC 3.5 states:

"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 concerning a pending matter except as permitted by law; or

"(c) engage in undignified or discourteous conduct toward the tribunal."

MCJC 3A(4), effective September 1, 1995, states:

"(4) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding, except as follows:

"(a) A judge may allow ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits, provided:

"(i) the judge reasonably believes that no party or counsel for a party will gain a procedural or tactical advantage as a result of the ex parte communication, and

"(ii) the judge makes provision promptly to notify all other parties and counsel for parties of the substance of the ex parte communication and allows an opportunity to respond.

"(b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.

"(c) A judge may consult with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities or with other judges.

"(d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.

"(e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so." Emphasis added.

Since the inquirer intends to contemporaneously copy the opposing counsel, the communication is not ex parte. The proposed letter is, however, "other communication made to the judge outside the presence of the parties" and, to the extent it relates to the conditions of the defendant's release, it concerns a pending or impending proceeding. The proposed letter does not fall within the exceptions listed in MCJC 3A(4) - it is neither initiated by the judge, nor is it directed merely to court personnel, nor is the author "disinterested." The subject does not concern scheduling, administration, nor emergency. There is no reason to believe that the inquirer could not provide any necessary clarification of the incident at the time the judge schedules a determination on the defendant's fulfillment of the conditions of release.

A letter addressing the substance of a pending matter, which is directed to or copies the presiding judge, is improper even if the opposing counsel is contemporaneously sent a copy of the same letter. Traditional ways of communicating with a judge about the substance of a pending matter are by pleading and oral argument. We are unaware of any court rule, statute, or other legal authority which authorized communication with the presiding judge in any other manner. Cf MCJC 3A(4)(e), a judge may initiate or consider any ex parte communications when expressly authorized by law to do so. Emphasis added.

MRPC 8.4(c) further prohibits a lawyer from engaging in conduct prejudicial to the administration of justice, and MRPC 8.4(e) prohibits a lawyer from knowingly assisting a judge in conduct that is a violation of the Code of Judicial Conduct. The reciprocal nature of these duties, prohibited to the judge in the Michigan Code of Judicial Conduct and prohibited to the lawyer if it would cause a violation by the judge, was endorsed as early as 1946, when this Committee issued Opinion 96. In deciding the time at which a trial brief must be served upon opposing counsel, we stated in Opinion 96:

"Hence, the reciprocal relationship of bench and bar are already established with reference to the matter of ex parte communications. No argument, either oral or written, which is intended or calculated to influence the court, may ethically be made by a lawyer to a judge in the absence of opposing counsel. Inasmuch as a brief constitutes a written argument, it must be served upon opposing counsel simultaneously with its being filed with the court. We believe the same rule should be followed with respect to the filing of copies of any record of proceedings, the writing of letters or any other method adopted by a lawyer in communicating with the judge in connection with a pending cause."

The issue concerning propriety of communications, whether applying MRPC 3.5(a) or MCJC 3A(4), depends upon whether the communication is intended to influence the decision-maker regarding substantive matters or issues on the merits. Communication, whether written or verbal, of the type contemplated by the inquirer would be improper under these rules.

CI-1019 which allowed argumentative correspondence to be sent to the assigned judge provided that the lawyer served a copy on opposing counsel was based on the former Michigan Code of Professional Responsibility DR 7-110(B)(2) and DR 1-102(A)(4), which provisions were not carried over to the Michigan Rules of Professional Conduct. MCPR DR 7-110(B) provided:

"In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:

"(1) In the course of official proceedings in the cause.

"(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.

"(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.

"(4) As otherwise authorized by law."

MCPR DR 7-110(B)(2) clearly permitted a lawyer to correspond with the court, in writing, so long as a copy of the correspondence is delivered to the opposing counsel "promptly." MRPC 3.4(a) and (b) are substantially different from the former rule and CI-1019 is superseded.