11-03.

• Case Date: June 10, 2011
• Court: Kansas

Kansas Ethics Opinions 2011. 11-03. KBA Legal Ethics Opinion No. 11-03June 10, 2011TOPIC: Communicating with judges via e-mail and letter.DIGEST: Communicating with a judge via e-mail or letter does not represent an ex parte communication, if the opposing counsel or party is sent the e-mail or letter at the same time, through the same means of transmission. Date of Request: June 10, 2011. REFERENCES: Rule 3.5(c)(Ex Parte Communications). FACTS: Counsel is engaged in a family law practice. On occasion, an opposing lawyer will send an e-mail, fax or letter to the judge presiding over a case, and the communication includes arguments, evidence (sometimes including exhibits), and sometimes requesting immediate action from the judge. The communication is copied to the opposing attorney, who will respond with an objection to communicating with the judge in that fashion and requesting that substantive issues, arguments or requests be included only in formal pleadings or in hearings where all counsel are present. QUESTIONS: 1. Is it improper ex parte communication in violation of the Rules of Professional Conduct to contact a judge directly via fax, letter and/or e-mail setting forth facts, arguments and/or supporting authorities even when the communication is copied to all counsel? 2. Should all communications with the court (specifically the judge), except for scheduling purposes, be done formally by the filing of pleadings and oral arguments presented in court with all counsel present and on the record? ANALYSIS: Rule 3.5(c), Kansas Rules of Professional Conduct,(fn1) provides as follows:

3.5. Advocate: Impartiality and Decorum of the Tribunal

A lawyer shall not: . . .

(c) communicate or cause another to communicate as to the merits of a cause with a judge or official before whom an adversary proceeding is pending except:

(1) in the course of official proceedings in the cause;

(2) in writing, if the lawyer promptly delivers a copy of the writing to opposing counsel or to the adverse party if unrepresented;

(3) orally upon adequate notice to opposing counsel or the adverse party if unrepresented;

(4) as otherwise authorized by law or court rule;

There are, of course, situations (such as requests for protection from abuse(fn2) or temporary injunctions(fn3)) which permit an application for a court order to be made...