Can a lawyer present a proposed order to a judge ex parte, without notice to opposing counsel?

Plain-English summary

The inquiry concerned presenting orders for fixing restitution to a judge ex parte, without notice to opposing counsel. The committee was of the opinion that such communication with a judge would be allowed by RPC 3.5 if the communication is permitted by law.

The committee declined to go further. It said it could not give legal opinions on whether adopting a local rule might satisfy the "permitted by law" requirement, and it could not provide opinions concerning judicial ethics. The holding therefore turns the ethics question back on the underlying law: RPC 3.5 permits the ex parte presentation only if some other law authorizes it.

Currency note

This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 ever proper to present an order to a judge ex parte?

A: The committee concluded it can be, but only when the ex parte communication with the judge is permitted by law; absent that, RPC 3.5 does not allow it.

Q: Does a local court rule make ex parte presentation permissible?

A: The committee declined to answer. It said whether a local rule satisfies the "permitted by law" requirement is a legal question it could not opine on.

Q: Did the committee address the judge's side of the ex parte contact?

A: No. The committee stated it could not provide opinions concerning judicial ethics, so it addressed only the lawyer's conduct under RPC 3.5.

Background and rules framework

The opinion applied RPC 3.5 (impartiality and decorum of the tribunal, corresponding to ABA Model Rule 3.5), which bars prohibited ex parte communication with a judge except as permitted by law. The committee read the rule as conditioning the propriety of the ex parte presentation on whether the communication is otherwise authorized by law, and treated the local-rule and judicial-ethics questions as outside its remit.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.5 (impartiality and decorum of the tribunal; ex parte communication); Washington RPC 3.5

See also

• WSBA Ethics Op. 1035: Letter Criticizing a Judge
• WSBA Ethics Op. 1397: Ex Parte Contact With a GAL
• WSBA Ethics Op. 1303: Casual Talk With Prospective Jurors

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1132

Original opinion text

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

Advisory Opinion: 1089
Year Issued: 1987
RPC(s): RPC 3.5
Subject: Ex parte conduct; Presentation of orders without notice to opposing counsel

The Committee considered your inquiry concerning the presentation of orders for fixing restitution ex parte without notice to opposing counsel. The Committee was of the opinion that such communication with a judge would be allowed by Rule 3.5 of the Rules of Professional Conduct if such communication is permitted by law. The Committee cannot give legal opinions as to whether the adoption of a local rule might satisfy this requirement. Neither can the Committee provide opinions concerning judicial ethics.