It is unethical for an attorney to engage in ex parte communication without notifying opposing counsel.
In discussing a dispute with opposing counsel, we discussed a proposed resolution. The next day, he filed an injunction and got an ex parte order from the local trial judge without notifying either myself or my client that he intended to do so. Is that unethical?
The Pennsylvania Rules of Professional Conduct and the Code of Judicial Conduct prohibit ex parte communication except under extremely exceptional and exigent circumstances. Under Rule of Professional Conduct 3.5(b), a lawyer cannot communicate ex parte with a judge during a proceeding unless authorized to do so by law or court order.
Further, Rule 3.3(d) states that if there is an ex parte proceeding, a lawyer has to inform the judge of all material facts known to the lawyer that will enable the judge to make an informed decision. The facts have to be given, even if they are adverse. In other words, the lawyer has to give both his or her side and the opponent’s side.
Comment 14 to Rule 3.3 notes that the ex parte proceeding must be fair and just. As a result, the judge has a responsibility to accord the absent party just consideration and the lawyer for the represented party has the duty to make disclosures of material facts known to the lawyer that are necessary for an informed decision.
Therefore, although there should not be an ex parte communication, if it is allowed under extraordinary circumstances, then the lawyer must present both sides and do it fairly. The lawyer who fails to do that in the ex parte hearing could face serious repercussions from the judge later once the judge hears all the evidence. If the lawyer has misrepresented facts to the judge, that will certainly create problems for the lawyer in future dealings with the judge.
But the important ethical issue is that there has to be an effort to advise opposing counsel and give them a chance to be present at the ex parte hearing. Sometimes there is a need to get an emergency order. But if the lawyer knows who opposing counsel is, then the lawyer should tell opposing counsel or tell the opposing party he or she is going to a judge at a certain time. Some counties, like Philadelphia, require a lawyer to state they have attempted to notify opposing counsel about the hearing and ex parte meeting.
In the question as posed, the lawyer acted very badly. He was talking to opposing counsel the day before. He did not reference the fact that there was going to be litigation and an ex parte order sought. He made no effort to call opposing counsel, to whom he had already been speaking, to allow them to be present. Presumably, an adverse order may have been entered. Although that may be changed at a later hearing date, the damage could well have been done.
This kind of conduct — not notifying known opposing counsel — is just unacceptable for a member of the bar. Further, the lawyer’s word is now going to be worthless if it gets around how he treated the opposing lawyer.
There is absolutely no reason to act in such an unethical and untruthful way. In the practice of law, one should not count on getting victories by deceit or misleading. Victories have to come based on advocacy and the merits or lack of merits of the underlying case and cause.
Under Canon 3(a)(4) of the Code of Judicial Conduct, a judge is to treat all people fairly with the right to be heard. A judge is not to consider ex parte communications concerning a pending case or proceeding.
Therefore, to answer the question, the lawyer acted improperly and unethically. There was ample time to tell opposing counsel to be there that next morning. The lawyer attempted to pull a fast one on opposing counsel to apparently try to gain some advantage with the judge. It would be interesting to know what was told to the judge and whether or not the lawyer fulfilled his or her obligation in an ex parte situation to reveal facts that were adverse to the lawyer’s position. But that is unknown as part of this question.
Practicing law should still be a courteous business. Lawyers should not be taking advantage of each other. There is a lot to be said for collegiality among members of the bar. Certainly, that doesn’t mean lawyers can’t fight for their clients’ causes as hard and as fairly as they are able to. But mean-spiritedness and deceit and misleading opposing counsel are not acceptable conduct and never will be.
This kind of conduct will clearly get a lawyer a bad reputation among other members of the bar and, ultimately, among the judiciary. Even in a large city, word gets around as to whom one can trust and whom one can’t.
If a client were to audit a lawyer’s legal bills,
it would have to do so in a way that maintains
I am a young lawyer working with a firm that does insurance defense. The insurance company wants to audit my legal bills and has hired an auditor to do that. Can I turn over the material?
The question is an interesting one. The starting point would be: Who is the client? Insurance counsel represents the insured, not the insurance company. Although the insurance company is paying the legal bills, that doesn’t change the situation and Rule of Professional Conduct 1.8(f) covers the situation where someone else is paying the legal bills. There can’t be any interference with the lawyer’s independence, and confidentiality must be maintained under Rule 1.6.
For a person to audit the legal bills, he or she would have to look at the file and confidentiality could be implicated. The lawyer then would either have to say no to the auditor and/or get the client’s consent. There is no exception to the rule of confidentiality for cases where the insurance company paying the bill wants to audit the legal fees and to do that must see confidential information.
Obviously, lawyers who handle court-appointed cases in the Philadelphia system — and perhaps in other counties — face the fact of auditors reviewing fees. Usually, in Philadelphia, no one asks to see the file. It appears sometimes just a general slashing. But if the court administrator asks to see the file or documents to justify certain expenses, there may again be confidentiality issues.
The young lawyer is in a very difficult situation. It makes it difficult for the insurance company to audit the bills and the lawyer and his or her firm may not get any more business from the insurance company. A lawyer who is young may not have a job. The law firm may terminate him or her if he or she raises the issue and it creates friction with the insurance company that has been using the law firm’s services for many years.
From a practical standpoint, these issues can be resolved. But the lawyer, before acquiescing, must get the client’s consent and must keep the client advised.
As difficult as it might seem, the insurance company is not the client. The client is the person the insurance company sent to the lawyer. The confidentiality between the lawyer and the actual client must be maintained at any and all costs by the attorney. •
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethicsfor more than 35 years. He welcomes questions and comments from readers. If you have aquestion, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.