What is the relationship between Rule 5(d), SCRCP, requiring lawyers to send proposed orders to opposing counsel simultaneously and by the same means as sent to the judge and Rule 3.5 of the Rules of Professional conduct prohibiting ex parte contacts with judges “unless authorized to do so by law or court order?”
An ex parte communication is “A communication between counsel or a party and the court when opposing counsel or party is not present. Such communications are ordinarily prohibited.” It is “without notice to, or argument by, anyone having an adverse interest.” Black’s Law Dictionary (11th ed. 2019)
Many lawyers wrongly believe that Rule 5(d) provides a right of review to opposing counsel, allowing them to send comments, corrections, criticisms, questions, and suggestions to the trial judge. They are wrong. The purpose of Rule 5(d) is to avoid ex parte communications.
Judge A instructs Lawyer B to prepare the temporary order. Lawyer B may email the judge asking about a term of the order. This is legitimate if the question does not suggest an answer. Copying opposing counsel on an email does not avoid the ex parte prohibition. While it may provide notice, it does not provide an opportunity for argument. Frequently judges respond to these emails before opposing counsel sees or can respond to the email. These are real-life examples from my recent experience.
- Who is responsible for transportation for visitation? Legitimate question because it seeks necessary information without suggesting an answer.
- Is the father responsible for the transportation for visitation?
- Who is responsible for the guardian ad litem fees after exhaustion of the guardian’s retainer fee? Legitimate question because it seeks necessary information without suggesting an answer.
- Are the parties to divide the guardian’s fees equally after exhaustion of the guardian’s retainer fee? Ex parte argument, because it suggests an answer (especially where the mother is a stay-at-home mom whose only income is child support and alimony).
- When does the weeknight visitation begin? Legitimate question because it seeks necessary information without suggesting an answer.
- May the weeknight visits begin next Tuesday? Ex parte argument because it suggests an answer.
- “You have made an excellent team. Thanks (secretary) and Judge (judge). And this while the order is outstanding with unresolved issues. I cannot imagine where this would be appropriate other than the judge’s retirement party.
Thomas R. Haggard and Elizabeth Scott Moise write, “Neither state nor federal court rules prohibit writing letters to judges (except that they cannot be made ex parte), but anecdotally speaking, judges dislike getting them.” The Scrivener (3d. ed., 2009), pp. 349-50.
Pleadings, motions, status conferences, and trials with testimony and exhibits are legitimate communication methods with judges. Emails, text messages, letters, faxes, telephone calls, and smoke signals. If the lawyer is dissatisfied with the order, he or she may move for reconsideration, appeal, or seek a supersedeas. These legitimate methods require filing fees, service of documents, and an opportunity for argument from opposing counsel. Other communications with the trial judge are not acceptable, regardless of how poorly, or even dishonestly, opposing counsel wrote the order.
One approach I have taken when I wanted to communicate with a judge is to send opposing counsel a copy of the communication by email asking, “Do you consent to my sending the attached communication to Judge A.?” After writing this blog post, I will always follow this procedure. I also recommend it to you.