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Ex Parte Communications

Order Instructions

Information:

 

Examining Attorney Communications

Ex Parte Communications with a Judge 

Attorneys are prohibited from having ex parte communications with judges under Rule 3.5(b).  An ex parte communications occurs when one attorney talks to a judge or juror without notice or opportunity to respond. The intent behind this rule is to assure that all parties receive a fair hearing in front of an impartial judge and applies to all forms of communication.  The communication with opposing party should be made at the same time and manner as the communication with the judge. There is a split between the courts concerning whether this ABA Rule applies to substantive and procedural matters or just substantive. Procedural refers to the rules of the court that set forth the process for litigation and substantive to the matters at issue in the case.  Other exceptions may be found in state statutes or procedural rules. Attorneys and their employees may have ex parte communications with a judge or court personnel for scheduling or other administrative purpose and emergencies.  You should research the ethical rules and court cases reviewing this issue to determine exactly what ex parte communications are prohibited in your jurisdiction. As with confidentiality, this prohibition extends to all employees of the attorney and firm.  

Ex Parte Communications with a Juror or Potential Juror

An attorney may not communicate directly with a juror or potential juror under ABA Rule 3.5(b).  An attorney may address a juror directly to determine bias if the court allows voir dire (questioning jurors for possible bias). The reasoning behind this prohibition is the same, a fair and impartial hearing with unbiased jurors.  An attorney is also prohibited from making any gestures that may be viewed as currying favor such as opening a door, handing them a Kleenex or cup of water or speaking to specific juror during argument in the case.  For example, in voir dire you learned that a juror’s brother suffered a similar injury from a product much like the one that caused the plaintiff injury, an attorney cannot attempt to single that juror out or try to speak to them directly during the litigation. The only court officials that may have direct contact with a juror are the judge, bailiff, and court administration.  This prohibition remains until the verdict is reached and jurors are excused.  Once the jurors have been excused, attorneys, if the court allows, may approach the jurors, and then ask them about the case – the attorney’s performance, evidence, discussions that lead to reaching the verdict. Although some courts restrict questioning to whether the verdict was improperly influenced or fraudulent, and some courts may not allow it at all.  If allowed by the court, these discussions can be incredibly useful to attorneys for improving their skills for future litigation. 

Communications with Opposing Party and a Non- Party Witness

If an opposing party is represented by an attorney, there are some people who insist on representing themselves, an opposing attorney may not contact them without the consent of opposing counsel. See ABA Rule 4.2.  If the opposing party is a corporation, this prohibition generally extends to managerial employees and employees whose testimony may have an impact on the corporation’s liability. If the attorney is prohibited from contacting the witness directly, the attorney can ask the court to subpoena the witness to a deposition where the attorney may question the witness.

An attorney is allowed to contact a non-party, unrepresented witness as long as counsel makes it clear that this is a request that the witness may deny.  The attorney must also advise the witness of the attorney’s role in the case. See ABA Rule 4.3.  An attorney may speak with the witness about the case, their testimony or anything else related to the case; with the caveat that the attorney not reveal confidential information without the consent of the client. If a witness refuses to cooperate, the attorney can subpoena the witness to a deposition. This ensures that both parties have equal access to the witness. If the non-party witness is represented by counsel, the attorney must get the consent of the witness’s attorney before attempting to communicate with the witness. See ABA Rule 4.2.

 

Instructions:

 

Develop a factual situation involving an attorney ex parte communication. Find at least four state or federal court cases that review and discuss the legal issue in your factual scenario. Prepare a legal memorandum that provides the factual scenario you developed and an analysis of the issue(s) using the case law.  Assume that you are the judge reviewing the issue(s) indicate how you would decide the case.  Please include your reasoning for reaching the ruling.

*legal memorandum has separate sections including the facts , issue, rule, analysis and conclusion*

 

Books and resources:

 

Beyond the No-Contact Rule: Ex Parte Contact by Lawyers with Nonclients.

Authors – Cohen, George M

Source- Tulane Law Review. Jun2013, Vol. 87 Issue 5/6, p1197-1244. 48p

 

Private Talks

Author- Thompson, Kathryn A

Source – ABA Journal

 

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