June 20, 1984
A lawyer may send argumentative correspondence directly to the judge assigned to a case provided that the lawyer serves a copy of the correspondence upon opposing counsel simultaneously with its being filed with the court, and provided further that the correspondence does not amount to conduct involving dishonesty, fraud, deceit, or misrepresentation.
References: MCPR DR 7-110(B)(2), DR 1-102(A)(4).
A lawyer has received a copy of argumentative correspondence prepared by opposing counsel and directed to the presiding judge. The lawyer asks whether it is proper to respond with argumentative correspondence directed to the judge with a copy to opposing counsel. On the other hand, the lawyer is concerned that if he does not respond to letters sent to the judge by the opposition, the client's case may be prejudiced.
MCPR DR 7-110(B) provides:
"In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
"(1) In the course of official proceedings in the cause.
"(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
"(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
"(4) As otherwise authorized by law.
MCPR DR 7-110(B)(2) clearly permits a lawyer to correspond with the court, in writing, so long as a copy of the correspondence is delivered to the opposing counsel "promptly." In deciding the time at which a trial brief must be served upon opposing counsel, this committee stated the following in Opinion 96:
"Hence, the reciprocal relationship of bench and bar are already established with reference to the matter of ex parte communications. No argument, either oral or written, which is intended or calculated to influence the court, may ethically be made by a lawyer to a judge in the absence of opposing counsel. Inasmuch as a brief constitutes a written argument, it must be served upon opposing counsel simultaneously with its being filed with the court. We believe the same rule should be followed with respect to the filing of copies of any record of proceedings, the writing of letters or any other method adopted by a lawyer in communicating with the judge in connection with a pending cause."
Consistent with MCPR DR 7-110(B)(2) and Opinion 96, we believe that it is permissible for a lawyer to submit argumentative correspondence directly to the judge assigned to a case, provided that the lawyer submitting the correspondence serves a copy of same upon opposing counsel simultaneously with its being filed with the court. The same rule holds true for any response letter sent by the opposing counsel directly to the judge. However, each lawyer is still governed by MCPR DR 1-102(A)(4), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation. Thus, although a lawyer may direct argumentative correspondence directly to the judge, with a copy going simultaneously to opposing counsel, the lawyer is prohibited from making any misrepresentations to the court by virtue of that writing.