Can a lawyer with no interest in a case send a Supreme Court justice a letter arguing his views on the pending appeal?

Plain-English summary

The Board was asked whether it would be proper for a member of the bar, who had no interest expressed or indicated in a case, to send a letter in the nature of a brief to a member of the Supreme Court expressing his views on a case pending before the court, the letter to be written and delivered without the consent or knowledge of either of the attorneys of record.

The Board answered that, on the plainest principle, such an action would constitute conduct most reprehensible and would subject the lawyer not only to punishment in contempt proceedings at the instigation of the court, but also to a disciplinary action resulting in the infliction of a serious penalty.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The prohibition on ex parte communication with a judge about a pending matter persists in modern rules, though the rule text and numbering have changed. Subsequent rule amendments 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 Treat this page as historical context, not current guidance.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: Can a lawyer write to a judge with his views on a pending case?

A: No, where the writing is an uninvited brief sent without the consent or knowledge of counsel of record. The opinion called such conduct most reprehensible.

Q: What were the consequences the Board described?

A: The opinion said the lawyer would be subject both to contempt proceedings at the instigation of the court and to disciplinary action carrying a serious penalty.

Q: Did it matter that the lawyer had no interest in the case?

A: The Board treated the lack of any expressed or indicated interest as part of the facts, but still found the unsolicited, undisclosed communication to the court reprehensible.

Background and rules framework

The opinion addressed an undisclosed, ex parte communication to a judge about a pending case. The Board decided it on general principle and did not cite a specific numbered rule. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• The opinion did not cite a specific numbered rule; it rested on the general principle against ex parte communication with the court about a pending matter.

See also

• Okla. Bar Ethics Op. 79: Soliciting work as amicus curiae
• Okla. Bar Ethics Op. 121: A fraudulent low estate appraisal to avoid inheritance tax

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-123/

Original opinion text

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

Adopted October 30, 1936

The Board is in receipt of the following inquiry:

"Would it be proper for a member of the bar, who has no interest expressed or indicated, to send a letter in the nature of a brief to a member of the Supreme Court expressing his views on a case pending before the court, the letter to be written and delivered without the consent or knowledge of either of the attorneys of record in the case?"

In response:

Upon the plainest principle such an action would constitute conduct most reprehensible and would subject the member of the bar, not only to punishment in contempt proceedings at the instigation of the court, but also to a disciplinary action resulting in the infliction of a serious penalty.