I contacted the judge to move up my motion's hearing date without discussing its substance. Did I need to notify opposing counsel first?

Plain-English summary

During the preparation of a case, the inquiring attorney drafted a motion to be heard in court. Because the motion would not be heard for sixty days, the attorney contacted the judge to expedite the hearing. The attorney told the panel that ex parte communications regarding "the substance of the motion" never occurred. The attorney asked whether the opposing attorney must be notified before obtaining the expedited court date.

The panel observed that the attorney appeared to be asking it to comment on substantive law rather than ethical conduct. It nonetheless cited Rule 3.5(b) ("Impartiality and Decorum of the Tribunal"), which states that a lawyer shall not communicate ex parte with such a person except as permitted by law.

The panel said it is unaware of any law that allows for the ex parte communication. In that regard, because the communication was not "permitted by law," the panel stated that under Rule 3.5(b) the ex parte communication is a violation of the ethical standard set forth in the Rules of Professional Conduct.

In practice

Under this opinion, a lawyer's ex parte contact with a judge to expedite a motion's hearing date is governed by Rule 3.5(b), which bars ex parte communication with a judge except as permitted by law. The opinion holds that, absent a law permitting it, such contact violates the ethical standard, even where the lawyer says the substance of the motion was not discussed.

Common questions

Q: Can I contact the judge on my own to move up a hearing date?

A: Per the opinion, Rule 3.5(b) bars ex parte communication with a judge except as permitted by law, and the panel was unaware of any law permitting it, so such communication is a violation.

Q: Does it matter that I didn't discuss the merits of the motion?

A: Per the opinion, the panel still identified the contact as ex parte communication that Rule 3.5(b) prohibits absent a law permitting it; it did not carve out scheduling-only contact.

Q: Did the panel answer whether opposing counsel must be notified?

A: Per the opinion, the panel treated much of the inquiry as a question of substantive law but resolved the ethics point by holding the ex parte communication itself violates Rule 3.5(b).

Background and rules framework

The opinion applies Rhode Island Rule 3.5(b) (impartiality and decorum of the tribunal; ex parte communication), corresponding to Model Rule 3.5, which prohibits ex parte communication with a judge except as permitted by law. The panel found no law permitting the communication and concluded the ex parte contact violates the rule.

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality and decorum of the tribunal; ex parte communication)
• RI RPC 3.5(b)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-62: Seminars and Referrals From an Organization Owned by a Judge Under 3.5
• RI EAP Op. 92-90: Inviting Judges to an Annual Holiday Party
• RI EAP Op. 92-83: Paying a Probate Judge for Requested Special Sessions

Currency note

This opinion was issued in 1992 (Opinion 92-89, issued November 18, 1992), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 3.5 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 3.5 (impartiality and decorum of the tribunal). 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-89.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 92-89, Request #317
Issued November 18, 1992

An attorney seeks Panel advice with regard to the following circumstances. During the preparation of a case, the attorney drafted a motion to be heard in court. Because the motion would not be heard for sixty days the attorney contacted the judge to expedite the hearing of the motion. The attorney informs the Panel that ex parte communications regarding "the substance of the motion" never occurred. The attorney asks whether the opposing attorney must be notified prior to obtaining the expedited court date.

It appears that the attorney is asking the Panel to comment on substantive law rather than ethical conduct. The Panel cites Rule 3.5(b) entitled "Impartiality and Decorum of the Tribunal" which states that "A lawyer shall not: Communicate ex parte with such a person except as permitted by law." The Panel is unaware of any law which allows for ex parte communication. In this regard, "except as permitted by law" Rule 3.5(b) states that ex parte communication is a violation of the ethical standard set forth in the Rules of Professional Conduct.