Can a North Carolina lawyer email or text the presiding judge about scheduling or the merits, and when does copying opposing counsel make it proper?

Plain-English summary

The opinion clarifies a lawyer's responsibilities in communicating with members of the judiciary while representing a client, and on its adoption (July 16, 2021) the State Bar Council withdrew seven older opinions spanning 30 years (RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17) that had applied earlier versions of the Rules. The committee sorts lawyer-judge communications into three categories: clearly permissible (formal pleadings, arguments in public proceedings, communications authorized by law or court order), clearly prohibited (spontaneous in-person ex parte communications about the merits), and informal (such as emails about scheduling), and it focuses on the informal category.

The core rule is Rule 3.5(a)(3), which prohibits a lawyer from communicating ex parte with a judge unless authorized by law or court order, and Rule 3.5(d), which defines an ex parte communication as one on behalf of a party to a pending matter that occurs in the absence of an opposing party, without notice, and outside the record. Applying this, the opinion concludes that an email or text to the presiding judge requesting a continuance, sent without copying opposing counsel, is a prohibited ex parte communication even though scheduling matters are often limited and innocent; the Rules do not exempt scheduling. Sending the same generic request to all judges in the district does not cure the problem and may multiply the violations.

By contrast, the opinion concludes that copying opposing counsel on the communication means it is not made "in the absence of an opposing party," so it is not an ex parte communication, for both hard-copy and electronic messages. Even so, the opinion adds two limits. First, such a communication may still be barred by law, local rule, administrative order, or the presiding judge, and the Rules do not abridge the court's inherent power over its attorneys (N.C. Gen. Stat. § 84-36). Second, an unsolicited communication that addresses the merits, made outside the ordinary or approved course, is improper and prejudicial to the administration of justice under Rule 8.4(d), and copying opposing counsel does not cure that. Where the judge has instructed counsel to communicate directly (for example, to email trial briefs with copies to opposing counsel), the communication is neither a prohibited ex parte communication nor a violation of Rule 8.4(d), even on the merits.

In practice

Under the current North Carolina rules the opinion clarifies, a lawyer's informal communication to the presiding judge about a pending matter (including scheduling) is a prohibited ex parte communication under Rule 3.5(a)(3) and (d) unless opposing counsel is included or the communication is authorized by law or court order. The opinion holds that copying opposing counsel removes the ex parte character because the communication is no longer made in the opposing party's absence, and the same applies to text messages and emails.

The opinion holds that, even when not ex parte, an unsolicited communication addressing the merits of the case is improper under Rule 8.4(d) because it undermines fair and equal access to the tribunal, and copying opposing counsel does not fix that. A communication on the merits is proper when the presiding judge has requested it (for example, trial briefs or proposed orders), and the opinion notes that local rules, court orders, and the court's inherent power may impose additional limits, so a lawyer should review relevant rules before communicating with the court.

Common questions

Q: Can a North Carolina lawyer email or text the judge to ask for a continuance without copying opposing counsel?

A: No. Opinion #1 concludes that such a message is a prohibited ex parte communication under Rule 3.5(a)(3) and (d), because it concerns a pending matter and is sent in the absence of, and without notice to, opposing counsel; the Rules do not exempt scheduling.

Q: Does sending the request to all judges in the district instead of just one fix the problem?

A: No. Opinion #2 concludes the communication remains ex parte as to the judge presiding in a pending matter, and a single generic message may constitute multiple instances of prohibited ex parte communication.

Q: If I copy opposing counsel, is it still ex parte?

A: No. Opinion #3 concludes that a communication simultaneously provided to opposing counsel is not made "in the absence of an opposing party" and so is not an ex parte communication, for both hard-copy and electronic messages, provided it is not otherwise barred by law, local rule, or the judge and does not address the merits.

Q: Can I add argument on the merits if I copy opposing counsel?

A: No. Opinion #4 concludes that an unsolicited communication addressing the merits, outside the ordinary or approved course, is improper under Rule 8.4(d), and copying opposing counsel does not cure it.

Q: What if the judge tells the lawyers to email trial briefs directly to the court?

A: That is proper. Opinion #5 concludes that when the presiding judge instructs counsel to communicate directly (with copies to opposing counsel), the communication is neither a prohibited ex parte communication nor a Rule 8.4(d) violation, even on the merits.

Background and rules framework

The opinion interprets Rule 3.5 (Model Rule 3.5, impartiality and decorum of the tribunal). Rule 3.5(a)(3) prohibits ex parte communication with a judge unless authorized by law or court order, and Rule 3.5(d) defines an ex parte communication as one on behalf of a party to a pending matter, in the absence of an opposing party, without notice, and outside the record. Comment [8] explains that all litigants and lawyers should have equal access to tribunals and that a lawyer generally should not communicate with a judge in circumstances that might give the appearance of undue advantage.

The opinion also applies Rule 8.4(d) (Model Rule 8.4), which prohibits conduct prejudicial to the administration of justice, to unsolicited merits communications. It notes that the Rules do not abridge the court's inherent power over its attorneys, citing N.C. Gen. Stat. § 84-36, so local rules, administrative orders, and the presiding judge may set additional requirements.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.5 / NC Rule 3.5(a)(3), 3.5(d) and cmt. [8] (ex parte communications with a judge; equal access to the tribunal)
• Model Rule 8.4 / NC Rule 8.4(d) (conduct prejudicial to the administration of justice)

Statutes:

• N.C. Gen. Stat. § 84-36 (the Rules do not abridge the inherent powers of the court to deal with its attorneys).

Other opinions cited (withdrawn on adoption):

• RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17: prior lawyer-judge communication opinions, withdrawn July 16, 2021.

See also

• Illinois Bar Op. 94-07: Drafting an Order at the Judge's Ex Parte Request
• Illinois Bar Op. 93-12: Ex Parte Communication to Obtain Emergency Relief
• Kentucky Bar Op. E-419: Prosecutors Meeting With Judges on Policy

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2019-formal-ethics-opinion-4/

Original opinion text

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

In connection with the adoption by the Council of the opinion below on July 16, 2021, the following prior ethics opinions were withdrawn: RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17.

The Ethics Committee has issued a number of opinions interpreting and applying the Rules of Professional Conduct to various lawyer-judge communications. See RPC 237, 97 FEO 3, 97 FEO 5, 98 FEO 12, 98 FEO 13, 2001 FEO 15, 2003 FEO 17. However, these opinions—spanning 30 years—were based upon different iterations of the Rules of Professional Conduct. This opinion addresses and clarifies a lawyer’s responsibilities under the current Rules of Professional Conduct in communicating with a member of the judiciary while acting in a representative capacity. As a result, upon adoption of the present opinion, the State Bar Council withdrew the aforementioned opinions.

This opinion addresses a lawyer’s professional responsibility in communicating with a member of the judiciary during the course of litigation where the opposing party is represented by counsel. While this scenario is common, it is very possible that a lawyer may need to communicate with a member of the judiciary during the course of litigation where the opposing party is self-represented. A lawyer’s professional responsibility to avoid improper communications with the tribunal applies equally to situations where the opposing party is represented and where the opposing party is pro se. To preserve the integrity of and instill confidence in the justice system, a lawyer should take great care to ensure his or her conduct in communicating with a tribunal is compatible with the Rules of Professional Conduct, particularly when dealing with an unrepresented party.

Lawyers communicate with judges on a daily basis. Communicating with members of the judiciary is required for the effective representation of clients and the administration of justice. Lawyers’ communications with judges generally fall into one of three categories: 1) clearly permissible communications, e.g., formal pleadings and arguments during public proceedings and other communications authorized by law or court order; 2) clearly prohibited communications, e.g., spontaneous, in-person ex parte communications about the merits of a case; and 3) informal communications (e.g., email communications about scheduling dilemmas). This opinion primarily addresses informal communications.

Communication between lawyers and the courts by way of formal filings are the backbone of an effective justice system. The submission to a tribunal of formal written communications, such as pleadings and motions, pursuant to the tribunal's rules of procedure does not create the appearance of granting undue advantage to one party. Presuming the filings comply with the Rules of Civil Procedure, the local rules, and any other requirements imposed by law or court order, such communication is entirely permitted under the Rules of Professional Conduct.

The Rules of Professional Conduct impose some limits on lawyers’ communications with judges. These limits are designed to ensure fair and equal access to the presiding tribunal by the parties and their representative counsel. To this end, Rule 3.5(a)(3) prohibits a lawyer from communicating ex parte with a judge or other official unless authorized to do so by law or court order. Rule 3.5(d) defines “ex parte communication” as “a communication on behalf of a party to a matter pending before a tribunal that occurs in the absence of an opposing party, without notice to that party, and outside the record.”

The following are some common scenarios involving informal communications with judges.

Inquiry #1:

Lawyer A represents Wife in a domestic case against Husband, who is represented by Lawyer B. Lawyer A’s young child is sick, requiring Lawyer A to stay home to care for his child for the rest of the week. Lawyer A is scheduled to appear in court for a hearing in Wife and Husband’s domestic case tomorrow but can no longer attend the hearing due to childcare issues. May Lawyer A inform the court of his inability to attend court and informally request that the hearing be continued by email or text message to the judge presiding in the domestic case, without copying Lawyer B?

Opinion #1:

No. The definition of ex parte communications encompasses all communications concerning a matter that is pending before a tribunal, including scheduling issues. Rule 3.5(d). The Rules of Professional Conduct do not exempt scheduling matters from the prohibition on ex parte communications. Accordingly, although ex parte communications concerning scheduling matters are often limited and innocent in nature, they are prohibited unless authorized by law or court order. In this instance, Lawyer A’s communication is sent a) on behalf of himself and his client, b) concerning a matter pending before the tribunal (the domestic proceeding), c) outside of the record, d) without notice to the opposing counsel, and e) in the absence of opposing counsel. Accordingly, Lawyer A’s communication is an ex parte communication with the court, and thus prohibited unless authorized by law or court order. See Rules 3.5(a)(3) and (d).

Inquiry #2:

Same scenario as Inquiry #1. Does Lawyer A cure the ex parte nature of his communication by sending an email or text message to all judges in his district concerning his inability to attend court that week and requesting all hearings for which he is responsible during the week be continued, without copying Lawyer B or any other opposing counsel or party?

Opinion #2:

No. If Lawyer A has a matter pending and the communication is sent to the judge presiding in that matter, amongst other judges, the communication remains ex parte and is prohibited. See Opinion #2. If Lawyer A has multiple cases pending, the single, generic communication described in this inquiry may constitute multiple instances of prohibited ex parte communication.

Inquiry #3:

Same scenario as Inquiry #1. May Lawyer A inform the court of his inability to attend the day’s hearing and informally request that the hearing be continued via email or text message to the presiding judge, with Lawyer B copied on the email or text message?

Opinion #3:

Yes, provided the communication is not prohibited by law, local rules, or the presiding judge, and does not address the merits of the underlying case (see Opinion #4, below). Pursuant to Rule 3.5(d), a communication by a lawyer to a judge is a prohibited ex parte communication if made “in the absence of an opposing party” (or in the absence of opposing counsel). A communication to a judge that is simultaneously provided to the opposing party/counsel is not made “in the absence of an opposing party” and therefore is not an “ex parte communication” as defined in Rule 3.5. This is true of both hard copy communications and electronic communications, including text messaging and emails.

Lawyers are encouraged to remember that simultaneous provision of a communication does not necessarily result in simultaneous receipt of that communication. When possible and appropriate, a lawyer should provide reasonable advance notice to opposing counsel of the need and intention to communicate with the presiding judge about the subject of the communication.

However, even a communication that is not a prohibited ex parte communication may nevertheless be prohibited by law or court order, including local rules or administrative orders entered by the tribunal. A presiding judge or the rules of a tribunal may also provide guidance and/or instruction to lawyers concerning such communications, as the Rules of Professional Conduct are not meant to disable or abridge “the inherent powers of the court to deal with its attorneys.” N.C. Gen. Stat. § 84-36. Lawyers are advised to review all relevant laws and court orders, including local rules, prior to engaging in such communication.

Inquiry #4:

Same scenario as Inquiry #2. May Lawyer A communicate his inability to attend the hearing and informally request a continuance via email or text message to the presiding judge, with Lawyer B copied on the email or text message, if the email or text message contains additional argument from Lawyer A on the matter to be heard by the court in the upcoming proceeding?

Opinion #4:

No. Even though such a communication may not be a prohibited ex parte communication, it is still improper. Unsolicited communications addressing the merits of the underlying matter made outside the ordinary or approved course of communication with the court are prejudicial to the administration of justice in violation of Rule 8.4(d). As noted above, the purpose of the prohibition on ex parte communications is to ensure fair and equal access to the presiding tribunal by parties and their counsel. Allowing one party unfettered access to make off-the-record arguments to the presiding judge via electronic communication undermines the principle of fair and equal access to the presiding judge. See Rule 3.5 cmt. [8] (“All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings, a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which the judge presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party.”). It is also antithetical to the notion that cases are tried in a public forum rather than in private discussions behind closed doors. Providing notice and copying the opposing party/counsel on such a communication does not remedy these problems. Unless the communication is authorized by law or court order, or unless the communication is solicited by the presiding judge, informal communications that address the merits of the case are improper and constitute misconduct under Rule 8.4(d).

Inquiry #5:

Judge has instructed Lawyers A and B to send trial briefs concerning a pending motion to the judge via email, with a copy to opposing counsel. May Lawyers A and B submit substantive argument on the merits of a pending matter via email as the court has requested?

Opinion #5:

Yes. If the presiding judge has instructed counsel to communicate directly with the court, the communication is not a prohibited ex parte communication under Rule 3.5 and is not prejudicial to the administration of justice under Rule 8.4(d) even if the requested communication will be on the merits of a pending matter. This conclusion applies to any appropriate request from a judge to all counsel for communication, including trial briefs and proposed orders. Again, the Rules of Professional Conduct are not meant to disable or abridge “the inherent powers of the court to deal with its attorneys.” N.C. Gen. Stat. § 84-36. The presiding judge has the authority to determine how counsel are to communicate with the court; except as prohibited by law or court rule, such communications are within the discretion and preference of the tribunal and the presiding official.