When a judge asks a lawyer to draft a proposed order, must the lawyer serve it on opposing counsel at the same time it goes to the judge?

Plain-English summary

The committee was asked whether Rule 3.5 of the Montana Rules of Professional Conduct requires a lawyer who has been instructed by a court to prepare an order to serve that order on opposing counsel at the same moment the lawyer submits it to the judge. The committee answered that, while service may not be mandated as a matter of law, serving proposed orders on opposing counsel is appropriate within the Rules of Professional Conduct.

The committee read Rule 3.5, which protects the impartiality of a tribunal and bars ex parte communication with a judge except as permitted by law, against the principle that all litigants and lawyers should have equal access to tribunals. A lawyer generally should not communicate with a judge about a pending matter in a way that gives, or appears to give, one party an undue advantage. The committee characterized a failure to let opposing counsel comment on or object to a proposed order before it reaches the judge as unprofessional and potentially prejudicial to the administration of justice.

The committee identified the better practice as providing the opposition a copy of the proposed order in advance of delivering it to the judge, so opposing counsel has an adequate opportunity to comment or object. At a minimum, if the lawyer transmits the proposed order to opposing counsel simultaneously with delivery to the judge, the committee pointed to Rule 3.3(d), governing ex parte proceedings, as suggesting the lawyer disclose to the judge that opposing counsel has received a copy but has not yet had a chance to present comments or objections.

Currency note

This opinion was issued in 2003, before the State Bar of Montana's adoption of the 2004 revisions to the Rules of Professional Conduct, which renumbered and restructured several rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat the specific rule text quoted here as historical; verify against current rules before relying on any specific rule or requirement mentioned.

In practice

The opinion holds that, under the Montana rule as it stood at the time, a lawyer who drafts an order at a court's request is not strictly required by law to serve it on opposing counsel, but the committee identified advance service on opposing counsel as the appropriate and more professional course because it preserves the opposing party's chance to comment or object before the judge signs. The opinion adds that, where the proposed order goes to the judge and opposing counsel at the same time, Rule 3.3(d) suggests telling the judge that opposing counsel has the order but has not yet been heard.

Common questions

Q: Does a lawyer have to serve a court-requested proposed order on opposing counsel at the same time it goes to the judge?

A: The opinion says simultaneous service may not be mandated as a strict rule of law, but it is appropriate under Rule 3.5 to serve the proposed order on opposing counsel, and the committee identified advance service as the more professional practice.

Q: Why does serving the order on opposing counsel matter under the ethics rules?

A: The opinion ties it to Rule 3.5's protection of tribunal impartiality and equal access; not giving opposing counsel a chance to comment or object before the order reaches the judge is described by the committee as unprofessional and potentially prejudicial to the administration of justice.

Q: What should a lawyer tell the judge if the order is delivered to the judge and opposing counsel at the same time?

A: The opinion points to Rule 3.3(d) and suggests the lawyer disclose to the judge that opposing counsel has received a copy of the proposed order but has not yet had an opportunity to present comments or objections.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 3.5 (Model Rule 3.5), which forbids seeking to influence a judge by means prohibited by law, communicating ex parte with a judge except as permitted by law, and conduct intended to disrupt a tribunal. It also draws on Rule 3.3(d) (Model Rule 3.3(d)), the candor obligation that in an ex parte proceeding a lawyer must inform the tribunal of all material facts that will enable an informed decision, whether or not those facts are adverse.

Citations and references

Rules of Professional Conduct:

• Mont. R. Prof. Cond. 3.5 (impartiality and decorum of the tribunal) / Model Rule 3.5
• Mont. R. Prof. Cond. 3.3(d) (candor in ex parte proceedings) / Model Rule 3.3(d)

See also

• NYC Bar Op. 1987-6: Hand-Delivery to Tribunal Delaying Notice to Opposing Counsel
• State Bar of Montana Ethics Op. 870326: Client Perjury and Candor
• State Bar of Montana Ethics Op. 870522: Candor on a Workers' Comp Award

Source

• Landing page: https://www.montanabar.org/For-Attorneys/State-Bar-Resources/Ethics-Opinions
• Original PDF: https://www.montanabar.org/Portals/MONTANA/030703.pdf

Original opinion text

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

ETHICS OPINION
The following Ethics Opinion was issued on July 3, 2003, by the Ethics Committee of the State Bar of Montana in response to a question submitted by a Bar member:

QUESTION PRESENTED:
When a court or other tribunal requests counsel for a party to prepare an order for the court's signature, does Rule 3.5 of the Montana Rules of Professional Conduct require the attorney preparing the order to serve the order on opposing counsel at the same time attorney submits the order to the court?

SHORT ANSWER:
While as a rule of law such service may not be mandated, it is appropriate within the Rules of Professional Conduct that service of proposed orders are made on opposing counsel.

DISCUSSION:
Rule 3.5 of the Montana Rules of Professional Conduct addresses a lawyer's duty to maintain the impartiality of a tribunal. Rule 3.5 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 intended to disrupt a tribunal.

All litigants and lawyers should have access to tribunals on an equal basis. Generally, a lawyer should not communicate with a judge relative to a matter over which the judge is or will preside in circumstances that might have the effect or give the appearance of granting undue advantage to one party.

Failure to give the opposing counsel an opportunity to comment upon or object to a proposed order before it is submitted to the judge is unprofessional and may be prejudicial to the administration of justice. It is the more professional practice for an attorney to provide the opposition with a copy of a proposed order in advance of delivering the proposed order to the judge and thereby give the opposing counsel an adequate opportunity to comment upon or object to the proposed order. At a minimum, if the lawyer conveys the proposed order simultaneously with its delivery to the judge, Rule 3.3(d)[1] suggests the lawyer disclose to the judge in the ex parte communication that the opposing counsel has received a copy of the proposed order but has not had an opportunity to present any comments or objections to the judge.

CONCLUSION:
When a court or other tribunal requests counsel for a party to prepare an order for the Court's signature, it is appropriate under Rule 3.5 of the Montana Rules of Professional Conduct that counsel preparing the order serve the order submitted to the court to opposing counsel.

                          THIS OPINION IS ADVISORY ONLY

Note

1. Rule 3.3(d) provides that "in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse."