Does a lawyer violate the prohibition against ex parte contact with a judicial officer when the letter to the judge is copied to opposing counsel?
This is a question that has arisen over the years, but it is one that ought to be addressed periodically. Clearly, ex parte communication is prohibited by the Rules of Professional Conduct with a judicial officer. Rule 3.5 specifically prohibits ex parte communication with a judge or judicial officer on a case. Obviously, there are times when the law allows an ex parte proceeding such as in an emergency petition or motion. Even under those circumstances, a lawyer is required under Rule 3.3(d) to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision whether or not the facts are adverse to the lawyer. In other words, the lawyer has to provide both sides. Even in ex parte proceedings, it is encouraged to advise the other side or their lawyer if it can humanly be done.
