Can a lawyer submit a brief to the trial judge in a pending case without sending a copy to opposing counsel?

Plain-English summary

The inquiry asked whether a lawyer could file with the trial judge a brief covering the principal points involved in a pending action without furnishing a copy to opposing counsel.

The Committee unanimously concluded that doing so would violate Canon 19 (10-0). The opinion notes that Opinion 22 also covers the question.

Currency note

This opinion was issued in 1953, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Communications with a tribunal and the prohibition on improper ex parte contact are now governed by Texas Disciplinary Rules 3.03 and 3.05 and ABA Model Rules 3.3 and 3.5. 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 Treat this page as historical context, not current guidance.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: Could a lawyer give the judge a brief without copying opposing counsel?

A: No. The Committee held unanimously that this would violate Canon 19 (10-0).

Q: Did the opinion point to any related ruling?

A: Yes. The opinion states that Opinion 22 also covers this question.

Background and rules framework

The opinion interprets former Texas Canon 19, addressing candor and fairness, applied to submitting a brief to the trial judge without serving opposing counsel. The modern analogs are ABA Model Rule 3.5 (impartiality and decorum of the tribunal, including ex parte contact) and Model Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• MR 3.5 (impartiality and decorum of the tribunal), as the modern analog
• MR 3.3 (candor toward the tribunal)
• Texas Canon 19 (candor and fairness)

Other opinions cited:

• Texas Ethics Opinion 22: also covers furnishing the trial judge a brief without serving opposing counsel

See also

• TX Ethics Op. 87: Examining a Represented Defendant
• TX Ethics Op. 117: Obtaining a Statement From an Opposing Party

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-88/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_88.pdf

Original opinion text

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

QUESTION PRESENTED

Would it be a violation of the Canons of Ethics for an attorney to file with the trial judge a brief covering the principal points involved in a pending action without furnishing a copy to opposing counsel?

18 Baylor L. Rev. 232 (1966)

CANDOR AND FAIRNESS
An attorney may not file with the trial judge a brief covering the principal points involved in a pending action without furnishing a copy to opposing counsel.

Canon 19.

It is the unanimous opinion of the members of the committee that it would be a violation of Canon 19 for an attorney to furnish such a brief to the trial judge without providing a copy to opposing counsel. Opinion 22 also covers this question. (10-0)

Tex. Comm. On Professional Ethics, Op. 88 (1953)