Can a lawyer hand-deliver an argument letter to the judge but only mail the copy to opposing counsel?

Plain-English summary

A lawyer asked whether it was proper to send a letter of argument to a tribunal in a contested matter by hand, showing a "cc" notation to opposing counsel but no proof or method of service, while sending the copy to opposing counsel by mail. The committee concluded the practice is improper because it delays the adversary's knowledge of the communication and, by omitting any notation of the method of delivery, may mislead the tribunal into believing the adversary has simultaneous notice and has chosen not to respond.

The committee grounded the conclusion in DR 7-110(B)(2), which permits a written communication to a tribunal in an adversary proceeding only if the lawyer promptly delivers a copy to opposing counsel, and in the corresponding EC 7-35, which says a lawyer should not communicate with a tribunal by writing unless a copy is promptly delivered to the adversary. It noted that allowing a tribunal to consider what is in effect an ex parte communication can also cause the judge unknowingly to violate Canon 3(A)(4) of the Code of Judicial Conduct. Drawing on its prior opinion N.Y. City 887 (1975), the committee observed that a first impression conveyed in an ex parte submission, however unfair or erroneous, may be decisive, and that the hand/mail method could accomplish the same result. It read "promptly" to mean essentially simultaneous delivery, citing dictionary definitions and Wolff v. Dicker, and observed that regular mail is commonly assumed to delay receipt by three to five days.

The committee stated that, for hand-delivered letters to a tribunal, prompt receipt by opposing counsel should be ensured by delivering the copy by hand or simultaneous electronic transmission as well, with express courier or overnight mail where hand delivery is impractical. It recognized the rules should not be applied unreasonably against litigants with limited resources, with exceptions only where clearly justified, and said that in every instance a lawyer should state in the letter both the date a copy was sent to opposing counsel and the method used. The committee assumed, without deciding, that such communications were not contrary to the tribunal's local rules, a question beyond its jurisdiction.

Currency note

This opinion was issued in 1987, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Communications with a tribunal and ex parte contacts are now addressed by Rule 3.5, and conduct prejudicial to the administration of justice by Rule 8.4(d). 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, deadline, or requirement mentioned here.

Common questions

Q: Is it improper to hand-deliver a letter to the judge but mail the copy to opposing counsel?

A: The committee concluded yes; the method delays the adversary's knowledge of the argument and may mislead the tribunal, contrary to DR 7-110(B)(2) and EC 7-35.

Q: What does "promptly" deliver a copy to opposing counsel mean?

A: The committee read "promptly" as essentially simultaneous delivery, citing dictionary definitions and Wolff v. Dicker, and noted regular mail is commonly assumed to delay receipt by three to five days.

Q: How should a lawyer serve opposing counsel when hand-delivering to the court?

A: The committee said the copy should be delivered by hand or simultaneous electronic transmission, with express courier or overnight mail where hand delivery is impractical.

Q: What should the letter to the tribunal disclose about service?

A: The committee concluded a lawyer should state in the letter both the date a copy was sent to opposing counsel and the method used to deliver it.

Background and rules framework

The opinion applied New York Code DR 7-110(B)(2), which allows a written communication to a tribunal in an adversary proceeding only if a copy is promptly delivered to opposing counsel, and the corresponding EC 7-35; it linked the lawyer's duty to Canon 3(A)(4) of the Code of Judicial Conduct, which bars a judge from considering ex parte communications. These correspond to ABA Model Rule 3.5 (ex parte communication with and impartiality of the tribunal) and Model Rule 8.4(d) (conduct prejudicial to the administration of justice).

Citations and references

Rules of Professional Conduct:

• New York Code DR 7-110(B)(2); EC 7-35; Code of Judicial Conduct Canon 3(A)(4) (applied in the opinion)
• MR 3.5 (ex parte communications; impartiality of the tribunal); MR 8.4(d) (conduct prejudicial to the administration of justice)

Cases:

• Wolff v. Dicker, 152 Misc. 615 (N.Y.C. Mun. Ct. 1934), meaning of "promptly"

Statutes and rules:

• CPLR Rule 2103(b)(2); Fed. R. Civ. P. 6(e), assumed mailing delay

Other opinions cited:

• N.Y. City 887 (1975): impropriety of ex parte submissions to a tribunal
• N.Y. State 420 (1975); N.Y. State 325 (1974): ex parte communications

See also

• NYC Bar Formal Op. 1986-7: Disclosure of Client Confidences in a Lawyer's Self-Defense
• NYC Bar Formal Op. 1988-8: Communication With a Represented Government Agency Head

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1987-6/