Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer whose client is not a party to an OLCC license hearing send a letter to the hearing officer urging cancellation of the license, and does copying the other parties change the answer?

Short answer: The opinion concludes the lawyer may not send the letter ex parte, because not being a party is no exception to RPC 3.5(b); the lawyer may send it only if it is relevant and admissible, complies with the limits of RPC 3.4(e) and 3.9, and is copied to counsel for the parties.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

Proceedings are pending before the Oregon Liquor Control Commission (OLCC) on whether to cancel a licensee's alcohol license for selling to a minor. A lawyer represents the personal representative of the estate of someone killed in an automobile accident resulting from that sale. The lawyer's client is not a party to the OLCC cancellation proceeding but wants to aid the effort to cancel the license. The opinion asks whether the lawyer may send a letter to the hearing officer without copying counsel for the licensee and OLCC, and whether the answer changes if a copy is provided.

On the first question, the opinion answers no. Applying Oregon RPC 3.5(b), which bars ex parte communication on the merits with a judge or other official unless authorized by law or court order, and following OSB Op. 2005-83 (which applies the rule to contested-case administrative hearings), the opinion concludes the fact that the lawyer's client is not a party to the OLCC hearing is not an exception to the prohibition on ex parte contacts.

On the second question, the opinion answers yes, qualified, turning to Oregon RPC 3.4(e) and RPC 3.9. RPC 3.4(e) limits what a lawyer may put before a tribunal (no irrelevant or unsupported matter, no asserting personal knowledge of facts in issue, no personal opinion on the justness of the cause). RPC 3.9 requires a lawyer appearing before an agency in a nonadjudicative proceeding to disclose the representative capacity and conform to specified trial rules including RPC 3.5. The opinion concludes that if it reasonably appears to the lawyer that the letter could be relevant and admissible in the hearing, and the lawyer complies with the RPC 3.4(e) limits on its substance, the lawyer may send it to the hearing officer so long as a copy also goes to counsel for the parties, satisfying RPC 3.5(b).

In practice

The opinion holds that, under Oregon RPC 3.5(b) as it stood at the time of the opinion, a lawyer for a nonparty may not make ex parte contact on the merits with an OLCC hearing officer; nonparty status does not exempt the lawyer from the rule. A letter to the hearing officer is permissible only if it reasonably appears relevant and admissible, its substance stays within RPC 3.4(e), the appearance complies with RPC 3.9, and a copy is sent to counsel for the parties so the communication is not ex parte. Verify the current text of Oregon RPC 3.5, 3.4, and 3.9 before relying on any specific point.

Common questions

Q: My client isn't a party to the hearing. Can I write the hearing officer directly?

A: Not ex parte. The opinion concludes the client's nonparty status is no exception to RPC 3.5(b), so a letter to the hearing officer without copying the parties' counsel is prohibited.

Q: What if I copy the licensee's and the agency's lawyers?

A: Then it may be permissible. The opinion concludes the lawyer may send the letter if it reasonably appears relevant and admissible, the substance complies with RPC 3.4(e), and a copy goes to counsel for the parties to satisfy RPC 3.5(b).

Q: What limits apply to what the letter can say?

A: Per the opinion, RPC 3.4(e) bars irrelevant or unsupported matter, asserting personal knowledge of facts in issue, and stating a personal opinion on the justness of the cause; RPC 3.9 requires disclosing the representative capacity and conforming to the listed trial rules.

Background and rules framework

The opinion was issued in 2005 and interprets Oregon RPC 3.5(b) (no ex parte communication on the merits), RPC 3.4(e) (fairness; limits on what is put before a tribunal), and RPC 3.9 (advocate in nonadjudicative proceedings), corresponding to Model Rules 3.5, 3.4, and 3.9. It builds on OSB Op. 2005-83's application of the no-contact rule to contested-case administrative hearings.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 3.5(b) / Model Rule 3.5 (no ex parte communication on the merits)
  • Oregon RPC 3.4(e) / Model Rule 3.4 (fairness to opposing party and counsel)
  • Oregon RPC 3.9 / Model Rule 3.9 (advocate in nonadjudicative proceedings)

Cases:

  • In re LaFrance, 10 DB Rptr 1 (1996)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-83 (ex parte contact with an administrative law judge)

See also

Source

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