The COVID-19 pandemic has taught us many lessons. Closing New York courts to the public and conducting court appearances and trials virtually using Microsoft Teams and telephone conferencing has become an acceptable method of conducting business. As many judges and court personnel have accepted these and other alternative methods of communication, we likely will continue to see increased reliance on email for communication with the courts. The informality and relative “looseness” of email communication has the potential for creating ethical problems.
The Rules of Professional Conduct (RPC) prohibit ex parte communications with a court on the merits of the matter in an adversarial proceeding. RPC 3.5(a)(2) provides that in an adversarial proceeding a lawyer may not “communicate or cause another person to do so on the lawyer’s behalf, as to the merits of the matter with a judge or official of a tribunal or an employee thereof before whom the matter is pending, except: (i) in the course of official proceedings in the matter; (ii) in writing, if the lawyer promptly delivers a copy of the writing to counsel for other parties and to a party who is not represented by a lawyer; (iii) orally, upon adequate notice to counsel for the other parties and to any party who is not represented by a lawyer; or (iv) as otherwise authorized by law, or by Part 100 of the Rules of the Chief Administrator of the Courts.”