Opinion #325 – 01/24/1974 (51-73)
communication, court, duty of lawyer, ex parte communications, opposing counsel
Digest: Improper to submit a brief without delivering copy to opposing counsel
Code: EC 7-35; DR 7-110(B) Judicial Code: Canon 3(A)(4)
May an attorney submit a brief to a court without furnishing a copy to opposing counsel?
EC 7-35 provides:’All litigants and lawyers should have access to tribunals on an equal basis. Generally, in adversary proceedings a lawyer should not communicate with a judge relative to a matter pending before, or which is to be brought before, a tribunal over which he presides in circumstances which might have the effect or give the appearance of granting undue advantage to one party. For example, a lawyer should not communicate with a tribunal by a writing unless a copy thereof is promptly delivered to opposing counsel or to the adverse party if he is not represented by a lawyer. Ordinarily an oral communication by a lawyer with a judge or hearing officer should be made only upon adequate notice to opposing counsel, or, if there is none, to the opposing party. A lawyer should not condone or lend himself to private importunities by another with a judge or hearing officer on behalf of himself or his client.’DR 7-110(8) provides:”In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:'(1) In the course of official proceedings in the cause.'(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.”(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.'(4) As otherwise authorized by law.’Canon 3(A)(4) of the Code of Judicial Conduct and Section 33.3(a)(4) of General Rules ofAdministrative Board of the Judicial Conference provides in pertinent part:”A judge shall…except as authorized by law, neither institute nor consider ex parte or other communications concerning a pending or impending proceeding.’The Code makes no distinction between a “trial brief” and a ‘brief of argument;’ the rule is the same for both. cf. N.Y. City 852 (1961); N.Y. County 221′ (1923). Accordingly, unless expressly permitted by the court upon application on notice to all parties or authorized by law, it is improper to submit a brief or other communication to the court without promptly delivering a copy to opposing counsel. See, Drinker, Legal Ethics 78, 198, 278 (1953).